Ledson v Taylor - [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.

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

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

In particular, on 15 January 2008, he was convicted of unlawful possession of stolen property and sentenced to four months imprisonment, but fully suspended with a good behaviour order for 18 months.

He was also convicted and fined by the Court, on that occasion, for driving a motor vehicle which was unregistered and, in respect of which there was no third party insurance policy in force. He was subsequently convicted and fined by the Court on 13 February 2008 for being an unlicensed driver.

On 5 June 2008, the ACT Road Transport Authority (see s 16 of the Road Transport (General) Act 1999 (ACT) (the Road Transport (General) Act)), erroneously called in the statement of facts tendered at the sentencing hearing, the ACT Roads and Transport Authority then suspended his licence for non-payment of Traffic Infringement Notice penalties. Thus, from that date he was not eligible to drive.

On 4 December 2008, he was detected driving and charged as a repeat offender with driving whilst his licence was suspended.

He appears to have had his licence returned on a date not available to me, but on 5 February 2009, the ACT Road Transport Authority suspended his licence again.

On 2 April 2009, he was again detected driving and charged again as a repeat offender with driving whilst his licence was suspended. A small amount of cannabis was also found on him and he was charged with the possession of it.

On 26 May 2009, he was yet again detected driving and further charged as a repeat offender with driving whilst his licence was suspended.

A conviction for the charge of driving whilst his licence was suspended on 4 December 2008, constituted a breach of the good behaviour order made by Magistrate Fryar on 15 January 2008, as would the conviction for the driving on 2 April 2009. The latter breach, however, was not pursued when the prosecution offered no evidence to support it.

Mr Ledson came before Magistrate Cush on 20 June 2009 for sentence on these matters, and his Honour convicted him of all four offences, namely, the three driving offences and the possession of cannabis and found proved, the breach of the good behaviour order made with the suspended sentence.
His Honour proceeded as follows:
1.He convicted him of the breach of the good behaviour order and sentenced him to four months imprisonment (effectively activating the suspended sentence) to commence on the date he sentenced him, but ordered that Mr Ledson be released after one month and the balance of the sentence be suspended with a good behaviour order for 12 months upon that suspension.
2.He convicted him of the driving offence committed on 4 December 2008 and directed that he be subject to a good behaviour order with a condition to perform 240 hours of community service work within 18 months and disqualified him from holding or obtaining a licence to drive for two years.
3.He convicted him of the possession of cannabis and sentenced him to the rising of the court.
4.He convicted him of the driving offence committed on 2 April 2009 and sentenced him to imprisonment for three months, consecutive to the sentence at 1 above and to commence on 22 July 2009, but to be suspended after service of two months imprisonment, that is, on 21 September 2009, and subject to a good behaviour order for 12 months upon that suspension. He also disqualified Mr Ledson from holding or obtaining a licence to drive until the Court otherwise orders.
5.He convicted him of the driving offence committed on 26 May 2009 and sentenced him to three months imprisonment consecutive to the sentence of 4 above to commence on 21 September 2009 and directed it to be served by periodic detention, the first period of detention to be served from 25 September 2009 and the last period expected to end on 20 December 2009. He also disqualified Mr Ledson from holding or obtaining a licence to drive until the Court otherwise orders.
As I understand it, the intended effect of these orders was that Mr Ledson was sentenced to a total period of ten months imprisonment of which the first three months were to be served by full-time custody, the second three months by periodic detention and the balance was then to be suspended for 12 months. Mr Ledson would also be subject to a good behaviour order until 21 December 2010, by which time he was to have completed 240 hours of community service work. I am not sure that this is quite how the actually pronounced sentences will strictly work. I will deal with this later.
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.
An analysis of Mr Ledson’s criminal record shows that these current offences are not an aberration, but part of a pattern of disregard for the traffic (and other) laws. It shows a blatant and sustained contempt for traffic regulation and that previous leniency has not deterred him from continuing to offend.
That, of course, is not the end of the matter.
The criminal record tendered does not make it clear when Mr Ledson did or did not hold a driving licence, why it was suspended or when he was disqualified from holding one. Nor do the various statements of facts clearly address this issue, though, there are perhaps understandable reasons why they did not. In such circumstances of multiple offences like this, thought could perhaps be given to addressing such an issue.
A court has power to suspend a person’s driving licence or disqualify the person from holding a licence under provisions such as ss 62, 63 and 64 of the Road Transport (General) Act and ss 32, 33 and 34 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). These suspensions and disqualifications would usually, as part of the record of what the court ordered, appear in the criminal record.
In addition, however, the ACT Road Transport Authority has a statutory power to suspend a person’s driving licence where the person fails to pay an infringement notice penalty (s 44 of the Road Transport (General) Act), or where a person has incurred 12 or more demerit points under the demerit points system (Div 2.3, especially s 16 of the Road Transport (Driver Licensing) Act 1999 (ACT)). These suspensions are administratively imposed and will not, therefore, ordinarily appear on the person’s criminal record.
Full details of such suspensions were, accordingly, not in evidence, and so it is impossible to know the periods of and reasons for the suspensions. There was some reference to these in the statement of facts for the various offences.
The plea of guilty, of course, admitted every element of the offence (Maxwell v The Queen (1995) 184 CLR 501 (at 510-511), R v Gomez (2007) 1 ACTLR 145 (at 153)) and that included the fact of the suspension of Mr Ledson’s driving licence.
It was submitted that there was a qualitative difference, for sentencing purposes, between the removal of a licence by the Road Transport Authority and by a court. I will deal with that submission below.
A pre-sentence report, prepared under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT) had been prepared and was tendered. His Honour referred to matters in it quite extensively in the sentencing remarks delivered.
In summary, Mr Ledson has been resident in Canberra all his life, though he did commit offences in South Australia in 1991 and 1992 and was sentenced there in August 1992 to four year’s imprisonment with a non-parole period of 18 months.
He had a difficult upbringing and remains estranged from his father who asked him to leave the family home when Mr Ledson was 13 years old. He went to live with friends and left school soon after that. While he had limited formal education as an adolescent, he has, to his credit, taken advantage of educational opportunities in correctional facilities to complete his Year 10 certificate and to obtain qualifications in welding and plant operation.
Mr Ledson has an 11 year old son with whom he has no contact, though the son is apparently seeking some contact. Mr Ledson told the author of the report, however, that he is not ready to renew the relationship until his life is more stable.
Mr Ledson has been in a stable relationship for nine years. His partner has three children from a previous relationship, but he does not consider he is a parent to them, more like an older brother.
The learned Sentencing Magistrate observed in a submission that was put to his Honour that Mr Ledson’s partner was now engaging in more protective behaviour. His partner was transporting Mr Ledson to and from work as he had sold his car (which was “his pride and joy”) and she was refusing him access to her car in which two of the offences had been committed.
Mr Ledson has held many labouring positions since leaving his formal education, in spray-painting, painting, garage installation, welding, as a factory hand, storeman and sheet metal worker. He has had periods of unemployment of varying lengths.
He was, at the time of his sentencing, employed as a maintenance man and general cleaner. His work was said by his employer to be quite satisfactory. Although initially a casual and part-time job, he had, by the time he was sentenced, been employed full-time.
Mr Ledson has clearly had problems with illicit drugs. Indeed, the author of the pre-sentence report referred to “an extensive history of poly substance abuse.” This is not part of the present offences, save for the possession of the small amount of cannabis, though the offence for which the suspended sentence was imposed was a property offence which may have been drug related. Mr Ledson told the author of the pre-sentence report that he had ceased all drug and alcohol use, except for “sporadic use of cannabis”. That is, of course, to his credit if it is so.
From his criminal history, it can be seen that Mr Ledson has a poor record of compliance with court orders. On three occasions he failed to appear in court in accordance with a bail undertaking, he was charged on two occasions with breaching a recognizance into which he entered and a direction to serve imprisonment by periodic detention was cancelled.
Mr Ledson pleaded guilty to all the charges currently facing him and did so on the first occasion in court in respect of some of the offences. While there is value in the pleas as disclosing remorse and facilitating the course of justice, it cannot be given great weight in the light of the statutory injunction in s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) which provides:
(4)However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
Whatever the amount of discount permitted may be, where the prosecution case is strong, but not “overwhelmingly strong”, it seems to me that the prosecution case here was overwhelmingly strong, so no significant discount was available. Indeed, despite this, the learned Sentencing Magistrate reduced the sentence by one quarter to take account of the plea of guilty. That seems to be a significant discount, but no challenge was taken to it by the prosecution and I make no finding about it.
The learned Sentencing Magistrate’s reasons
The learned Sentencing Magistrate relied heavily on what I had said in Cotter v Corvisy (2008) 1 ACTLR 299. His Honour noted that offences such as these were said, in that decision, to be serious and referred to cases cited by me that made it clear that offenders who drive while their privilege or licence to do so is withdrawn can expect to be sent to prison.
His Honour also noted that the suspensions were made by the Road Transport Authority and not a court but considered that the gravamen of the offence was the same: wilful disobedience of a withdrawal of the privilege of driving.
His Honour carefully considered his obligation under s 10 of the Crimes (Sentencing) Act 2005 (ACT) to ensure that, before a sentence of imprisonment was imposed, no other penalty was appropriate.
His Honour then imposed the sentences referred to above at [12].

Jurisdiction

Part 3.10 of the Magistrates Court Act 1930 (ACT) regulates appeals to the Supreme Court from decisions of a Magistrate being, of course, decisions of the Magistrates Court. This appeal is brought under s 208(1)(e)(i) of that Act which gives the Court jurisdiction to hear and determine appeals against sentences of imprisonment imposed under Pt 3.2 of the Crimes (Sentencing) Act 2005 (ACT) which is the sentence imposed upon.
By virtue of s 216 of the Magistrates Court Act 1930 (ACT), the lodging of the notice of appeal has the effect of staying the execution of the sentence imposed. The notice of appeal was filed on 2 July 2009. On 17 July 2009, he was granted bail by this Court. Thus, he had spent 27 days in custody, of which 12 constituted service of the sentence imposed and the balance will only do so if this Court so orders, as it customarily does.

The principles on which such appeals are to be conducted seem, on the basis of the authorities, to be as follows:
1.The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error.
2.In finding the facts, the appellate court is in as good a position as the lower court, to decide the proper inferences to be drawn from the undisputed facts where no oral evidence is given in the court below, or the Trial Judge’s findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the Magistrate, although, once having reached its own conclusion, must give effect to it.
3.The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the lower court.
4.A legal, factual or discretionary error may be found where the Lower Court, inter alia, has taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.
5.The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, given that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.
6.Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this is not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.
The Appellant’s contentions
Mr Ledson did not challenge the total head sentences. In the light of Cotter v Corvisy and the cases cited in it, that is understandable. What was particularly challenged was the special burden that the total sentence will impose on him when he is released.
It was said that his employment is for long hours and he works between 5 and 7 days per week. Thus, the periodic detention, followed by the community service condition of the good behaviour order will severely impact on his ability to earn and support his partner.
It was submitted that the “combination of sentences imposed ... spanning a period of two years is an overly complex exercise in aggregation”. In particular, challenge was made to the interposition of a period of a periodic detention between the sentence of imprisonment and “the commencement of the performance of the period of community service”, which was said to make the sentence excessive.
It was also submitted that, as noted above at [27], there was a qualitative distinction between a court imposed disqualification from holding a driving licence and an administrative suspension of a driving licence by the Road Transport Authority, particularly where the latter was as a result of the failure to pay the penalty imposed by an expiation notice, that is a Traffic Infringement Notice, the implication being that of the latter failures to comply were less serious offences.
The Respondent’s Contentions
The respondent submitted that, viewed in the light of all the circumstances, the sentences were not manifestly excessive for the offences committed. Ms Begley, who appeared for the Respondent, submitted that the driving was a deliberate flouting of the law and that the learned Sentencing Magistrate was correct in identifying the gravamen of the offences as wilful disobedience regardless of whether to a decision of a court or of the Road Transport Authority.
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”.
Here, the court did adjourn at the end of the sentencing and this is to be taken as the “rising of the court”. In some cases, however, this could be some hours of custody: Harriss v Walker (1996) 89 A Crim R 257 (at 260). The adjournment at lunch may or may not be regarded as the “rising of the court”; it may be constituted by the adjournment at the end of the day. Even that is not always so regarded. In State v Weaver 11 Neb. 163 at 165; 8 NW 385, the rising of the court was said to be the court’s final adjournment on the last day of the court’s term. That, however, does not seem to be an interpretation that has ever been applied in Australia. The approach of actually specifying the time of rising, as in B Schurr, op cit, (at [59]) is to be preferred.
This sentence was not the subject of challenge.
The first challenge was in the submission by Mr O’Brien that I should approach driving whilst suspended differently where the suspension is by the Road Transport Authority from that when imposed by a court.
It seems to me that this misunderstands the situation. There are circumstances where a driving licence suspension or disqualification from holding a licence is made by a court as a discretionary matter. This, for example, occurs under s 64 of the Road Transport (General) Act.
Many of the disqualifications that accompany a conviction, however, are automatic, that is, imposed by the legislation itself. See, for example, ss 62, 63 of the Road Transport (General) Act and ss 32, 33 and 34 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). See also Travini v Starczewski [2009] ACTSC 123 (at [19], [60]).
In the case of a suspension imposed by reason of the driver’s accumulation of more than 12 demerit points, it is similarly the legislation which imposes the suspension: s 18(3) of the Road Transport (Driver Licensing) Act 1999 (ACT). Again, where the suspension follows non-payment of the infringement notice penalty, the legislature mandates the suspension though the Road Transport Authority is the agency through which it is imposed: s 44 of the Road Transport (General) Act.
Thus, even were it, as a matter of principle, more serious to drive in breach of a disqualification from holding a driver’s licence made by a court than in breach of a suspension made by the Road Transport Authority, it has to be noted that the source of many such orders of both the court and the Authority derive from the same mandatory (or, as described in the legislation, “automatic”) legislatively imposed disqualifications or suspensions. On this account alone, there is not much difference to be seen between the source of authority of the two methods of taking away the privilege which a driving licence conveys.
It is, of course, true that in the case of a Traffic Infringement Notice, the person served can pay the penalty specified in the Notice and thus, expiate the alleged traffic offence without admitting guilt: s 29(2) of the Road Transport (General) Act. On the other hand, a person served with such a notice may contest that alleged offence: s 51 of the Road Transport (General) Act.
Thus, I do not consider that there is a significant difference, so far as penalty for breach is concerned, between an offence of driving contrary to a suspension of driving licence by the Road Transport Authority, and an offence of driving contrary to a disqualification from holding a licence by a court.
The context of these offences must also be considered. When considering an individual offence, as a court in sentencing must do, it may seem that the offence has trivial aspects: it is often not the case that when an offence of driving while the driver’s licence is suspended or he or she is disqualified from holding a licence is committed, the driving otherwise breaches a road rule or puts a person in actual danger.
These matters are relevant, in that, such driving where there are particular breaches of road rules or the putting of persons in actual danger might aggravate the offence and warrant a more serious penalty. Such driving without other breaches, however, does not mitigate the offences. The base offence is thus still serious because of the context in which it occurs.
That context is the regulation of driving. This regulation is not a mere revenue raising system but part of the regime designed to ensure that persons who are given the privilege to drive (see per Gibbs J (as his Honour then was) in Watling v Watson, Ex parte Watson [1966] QWN 41 (at p 61)) are properly qualified and remain properly qualified to be in charge of a motor vehicle, which has the capacity, if not driven properly, to maim and kill. It is also designed to prohibit from driving those who drive contrary to the rules of the road, which are designed to promote road safety and the orderly movement of traffic and this, in itself, also promotes safety.
Thus, the regime of licence registration is not to be taken by the courts to be a mere administrative imposition and a means of revenue collection, but as a part of the very important social function of ensuring safety on the roads.
In the same way that many people who speed are not involved in collisions and many people who drive whilst under the influence of alcohol never actually cause others to be maimed or die. It is never possible to say in advance when a speeding driver will collide with another car or a pedestrian, or when a drunk driver will cause injury or death. The same is true of all infringements, such as failing to stop at a stop sign, failing to comply with traffic signals and so on. The possible consequences are so significant, however, and the risk so real that the regime must be kept intact. To do that, obedience is required regardless of actual danger in any particular car and this approach is relevant to the case of those whose driving licences are suspended or who are disqualified from holding a licence. The integrity of the regime requires that they not be permitted to drive at all.
There are, of course, always hard cases and the courts must be prepared to deal with each case on its merits. The context, however, in which this regime is to be seen, is important and the fact that the person whose driving licence was suspended or who was disqualified from holding a licence “merely” drove and drove without actual breaches of road rules or danger to other road users is by no means the end of the matter. Thus, there is a need to recognise and preserve, as appropriate, the integrity of the licensing system.
Accordingly, I reject the argument that a lesser penalty should be imposed because the suspension was imposed by the Road Transport Authority and not by the court.
The second matter was that for the offences, the sentences would have the effect of putting Mr Ledson under supervision and restraint for a period which would end two years after sentence. In fact, it seems to me that this is not correct. The longest period of a good behaviour order was 18 months from 22 June 2009 in respect of the driving offence committed on 4 December 2008. This commenced on the date of sentence and the Official Notice of Good Behaviour order given under s 103 of the Crimes (Sentencing) Act 2005 (ACT), included in the Appeal Book, so states. That part of the Good Behaviour Order runs concurrently with a period of full-time imprisonment and of imprisonment directed to be served by periodic detention is not relevant to that.
I would also have thought that the Good Behaviour Order made for the second driving offence committed on 2 April would have commenced at the date when the sentence of imprisonment is suspended: see s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) which refers to making “a good behaviour order for the period during which the sentence is suspended.” It can, of course, be for a longer period as that sub-section provides and, under s 29 of that Act, a sentence of imprisonment can be made in combination with any of the other specified orders. It does, however, seem odd to make a Good Behaviour Order in combination with a sentence of imprisonment for the same offence where the Good Behaviour Order is concurrent with a period of full-time imprisonment.
The third driving offence committed on 26 May 2009 was dealt with by a term of imprisonment directed to be served by periodic detention. That did not add much to the extent of restraint, though it meant that Mr Ledson could not work on Friday night or at the weekend.
Whilst this was arguably the more serious offence, for it was the third offence when Mr Ledson had twice before been apprehended by police, and also the manner of driving was problematic, it is true that application of the principles of totality (Mill v The Queen (1988) 166 CLR 59) would appropriately moderate the sentence so that it was not too severe. To make the sentence substantially concurrent with the other offences would likely mean that the sentence was inadequate, yet to accumulate it may well have been too severe.
There were subjective circumstances which meant that, despite his brazen approach to driving, Mr Ledson was beginning to address the criminal behaviour he had formerly shown in other areas. In addition, he had employment which was an important element in the process of him maintaining a non-criminal life-style.
It is unarguable that periodic detention is a lenient form of imprisonment: R v Hallocoglu (1992) 29 NSWLR 67 (at 73). It is important, too, to note that it is not appropriate (as, for example, it formerly was in New South Wales) to impose a longer period of periodic detention than would have been imposed if full-time imprisonment had been imposed: Douar v The Queen (2005) 159 A Crim R 154 (at 164 [61]; R v Schodde (2003) 142 A Crim R 307 (at 311 [15]).
The process in New South Wales for determining whether to direct a sentence of imprisonment be served by periodic detention, described in R v Schodde (at 311 [16]) and Douar v The Queen (at 165 – 6 [69]-[72]), seems to me to be the same process as mandated by the Crimes (Sentencing) Act 2005 (ACT). That is to say, there are three steps:
1.The court must determine whether there are any alternatives to the imposition of a term of imprisonment and, only if not, proceed to consider the imprisonment of the offender.
2.The second step is to determine what the term of the sentence of imprisonment should be and this is determined without regard to whether the sentence will be immediately served or the manner in which it is to be served.
3.Thirdly, and finally, the court must consider whether any alternative to full-time imprisonment is available in respect of that term and, if so, whether any such available alternative should be utilised. The appropriateness of such an alternative will depend on factors such as whether the statutory limitations are met, whether it results in a sentence that reflects the objective seriousness of the offence and whether it fulfils the various purposes of sentencing.
Here, it seems to me that his Honour was reflecting the need to denounce the continued offending in blatant disregard of the suspensions and the fact that he had been detected on earlier, relatively recent occasions, but also in giving credit for the steps taken and to support his efforts at reform.
The sentence will be an interference with his employment and, though inevitable, it must be taken into account that it may render his rehabilitation somewhat shakier. It is, of course, a consequence of his behaviour and the need to denounce the crimes he had committed, as well as the need to attempt to dissuade others from following the same course of behaviour by general deterrence, and to bring home to Mr Ledson the lesson he appears to be slow in learning.
That the final stage of this particular sentence is a period of community service is also a potential limitation on his employment, but, again, it is, if anything, a somewhat lenient response to his behaviour in the context of his prior offending and the opportunities he has been given.
Having regard to all these circumstances, I am not satisfied that the sentence was manifestly excessive and do not consider it should be set aside. Therefore, appropriate orders made to give effect to that finding.
Orders
The complexity of the situation of the stay and the requirements for specifying start and end dates of components of the offences mean that I need to restate some of these. I also need to give effect to the consequences of the stay referred to at [45] above.

Accordingly, subject to the following orders, the appeal is dismissed. I propose the following consequential orders but, because of their complexity, will give counsel the opportunity to comment on them before they are actually imposed.

2. The sentence of imprisonment imposed on charge CC07/07062 (CC09/2037) is confirmed but directed to commence on 20 April 2010 (to take into account the time already served and the period of custody after the appeal was lodged and before bail was granted) and on 18 May 2010 be suspended for twelve months and Mr Ledson be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months from 18 May 2010 with a condition that he give security in the sum of $1,000 for compliance with the good behaviour order.

3. The good behaviour order made on charge CC09/12836 is confirmed but to commence on 20 April 2010 for eighteen months from that date.

4. The sentence imposed on charge CC09/5055 is confirmed but directed to commence on 19 May 2010 and on 19 July 2010 be suspended for twelve months and Mr Ledson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months from 19 July 2010 with a probation condition for twelve months and a condition that he give security in the sum of $1,000 for compliance with the good behaviour order.

5. The sentence imposed on charge CC09/5780 is confirmed but directed to commence on 20 July 2010 and is to be served by periodic detention the first period of detention is to commence on 23 July 2010 and the last period is to end on 17 October 2010.

6. Except as above, the convictions and orders of the Magistrates Court given on 22 June 2009 are confirmed.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 17 May 2010

Counsel for the Appellant:  Mr M O’Brien
Solicitor for the Appellant:  Legal Aid Office (ACT)
Counsel for the Respondent:  Ms A Begley
Solicitor for the Respondent:  Director of Public Prosecutions (ACT)
Date of hearing:  22 September 2009
Date of judgment:  17 May 2010