Leljak v Fitzroy
[2015] ACTSC 247
•24 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Leljak v Fitzroy |
Citation: | [2015] ACTSC 247 |
Hearing Date: | 24 July 2015 |
DecisionDate: | 24 July 2015 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Criminal Law – driving with alcohol in blood – non-conviction order – licence needed for employment – availability of restricted driver licence – whether sentence manifestly excessive |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 17, 33, 35 Magistrates Court Act1930 (ACT) ss 207, 208, 214 Road Transport (Driver Licensing) Regulation2000 (ACT) reg 47(1) |
Cases Cited: | Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Proud v Sladic [2014] ACTCA 26 |
Parties: | Josip Leljak (Appellant) Brett Allan Fitzroy (Respondent) |
Representation: | Counsel Mr J Sabharwal (Appellant) Ms P Burgoyne-Scutts (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 27 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 1 April 2015 Case Title: Fitzroy v Leljak Court File Number: CC No 871 of 2015 |
MURRELL CJ:
The Appeal
The appellant appeals from a decision of the Magistrates Court.
On 1 April 2015, the appellant was convicted of the offence that, on 29 November 2014, he drove with a level 3 reading of alcohol (0.092 g of alcohol per 210L of breath). The Magistrate fined the appellant the sum of $600 and disqualified him from holding a driver licence for the statutory default period of 12 months.
The Magistrate then granted the appellant a restricted driver licence that allowed him to drive between 5:30 AM and 8 PM for employment purposes.
The grounds of appeal are:
(a)The Magistrate failed to properly exercise his discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
(b)The Magistrate failed to take into account the appellant’s need for a driver licence.
(c)The Magistrate incorrectly took the civil application into account when sentencing the appellant.
(d)The sentence is harsh and unjust in all the circumstances.
At the hearing of the appeal, the grounds were expressed as follows:
(a)The Magistrate failed to properly exercise his discretion to proceed under s 17 of the Sentencing Act. The Magistrate considered that s 17 of the Sentencing Act could be invoked only in exceptional circumstances.
(b)The Magistrate conflated the issue of the hardship occasioned to the appellant by conviction, consequent disqualification from holding a driver licence and resulting severe economic impact (which was relevant in the criminal proceedings) with the issue of whether a restricted driver licence should be granted (which was the subject of a civil application).
(c)Having regard to the early plea of guilty, the appellant’s prior good character, the economic impact of a conviction and the fact that the appellant had undertaken a driver education course, the imposition of a conviction was a manifestly excessive penalty.
The appellant seeks an order that he be dealt with pursuant to s 17 of the Sentencing Act.
Nature of the appeal
Section 207 of the Magistrates Court Act1930 (ACT) confers appeal jurisdiction upon this Court. This appeal is made pursuant to ss 208 and 214 of the Magistrates Court Act, which deal with criminal appeals. Many decisions of this Court have held that, in order for such an appeal to succeed, it is necessary for the appellant to show error of fact or law, or error in the exercise of discretion. An error may be express or implied. An error will be implied where a sentence is manifestly excessive, in that it lies outside the available range of sentences.
As stated in Proud v Sladic [2014] ACTCA 26 at [30], when considering an appeal against an ex tempore decision of a magistrate, it is appropriate to bear in mind the enjoinder of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291. His Honour observed that an appellate court should not “adopt a narrow approach combing through the words of the decision-maker with a fine appellate tooth-comb”.
Decision of the Magistrate
The Magistrate was required to consider two matters: the appellant had entered a plea of guilty to the criminal charge; and there was an application for a restricted driver licence.
The prosecution advised the Magistrate that the appellant had been stopped for a random breath test and not because he had attracted police attention by erratic driving. On breath analysis, the reading had been 0.092 g of alcohol per 210L of breath. Police formed the opinion that the appellant was slightly affected by alcohol.
The defence established that the appellant was 47 years old. He had been licensed for 30 years. He was a person of good character, and he had no prior criminal convictions. He had entered a plea of guilty at the earliest available opportunity. The matter had been adjourned to enable a restricted driver licence application to be put before the Court. The appellant had completed a “Know the Risk” driving awareness course. The appellant was a builder and bricklayer who worked as a subcontractor. He required a driver licence to attend worksites in NSW and the ACT. Because of the hours that the appellant worked and his need to transport bulky and heavy items to worksites, public transport was not a viable option.
The appellant asked that consideration be given to the imposition of a non-conviction order under s 17 of the Sentencing Act. The effect of a non-conviction order is that an offender does not automatically lose their driver licence.
The Magistrate sought information about the restricted licence application, and the appellant’s legal representative provided that information.
The Magistrate then delivered his judgment. After noting the alcohol reading, the fact that there was no particular aggravating factor such as erratic driving, the early plea of guilty and the appellant’s good character, the Magistrate addressed the submission seeking the imposition of a non-conviction order pursuant to s 17 of the Sentencing Act. His Honour said:
In the ordinary course of events when a person comes to court and they either plead guilty or they’re found guilty of an offence, a conviction follows as a matter of course. For a conviction not to be recorded is an exceptional outcome. In this case the material before me does not justify the exceptional outcome of not recording a conviction. I have, however, taken into account the various factors that have been put forward on your behalf by [your legal representative].
The Magistrate went on to refer to the application for a restricted driver licence, identifying that it was a civil application. His Honour said that his approach to the default driver licence disqualification period was influenced by the fact that he had decided that it was appropriate to issue the appellant with a restricted driver licence. His Honour fined the appellant $600 and disqualified him from holding a driver licence for the statutory default period of 12 months.
The Magistrate then turned to consider the application for a restricted driver licence. His Honour was satisfied that the appellant met the eligibility criteria and made an order accordingly. The restricted licence allowed the appellant to travel to, from and in the course of his work. The period of the restricted driver licence was set at 12 months to coincide with the driver licence disqualification period.
Correct approach to s 17 of the Sentencing Act?
Section 17 of the Sentencing Act applies if an offender is found guilty of an offence. It enables a sentencing court to proceed without recording a conviction. The provisions that require the automatic disqualification from holding a driver licence do not apply if no conviction is recorded (a non-conviction order is made).
Section 17 provides:
...
(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.
(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.
...
(Emphasis in original)
Section 17 must be read in the context of ss 7 and 33 of the Sentencing Act. Section 7 of the Sentencing Act provides that a sentencing court may impose a sentence for one or more identified purposes: punishment, general deterrence, personal deterrence, protection of the community from the offender, rehabilitation, accountability, denunciation and recognition of the harm done to the victim and to the community.
In this case, it is apparent that the Magistrate was aware of the approach to s 17 of the Sentencing Act that was approved in Proud v Sladic. In that case at [42], the Court stated that the ordinary consequence of a finding of guilt was the recording of a conviction and that the failure to record a conviction was an “exceptional outcome”. At [47], the Court noted that s 17 of the Sentencing Act says nothing about the need for “exceptional circumstances.” This important distinction between “exceptional circumstances” and “exceptional outcome” was not lost on the Magistrate; his Honour referred to the fact that a non-conviction order was an “exceptional outcome” (see [14] above).
The appellant has not shown that the Magistrate failed to properly exercise his discretion pursuant s 17 of the Sentencing Act. The Magistrate was right to consider that the making of a non-conviction order pursuant to s 17 of the Sentencing Act was an exceptional outcome.
Conflation of considerations?
Regulation 47 of Road Transport (Driver Licensing) Regulation2000 (ACT) provides:
(1)The Magistrates Court may make an order authorising the road transport authority to issue a restricted licence to a person only if the person establishes that there are exceptional circumstances justifying the issue of the licence.
In considering whether there are “exceptional circumstances”, the Magistrates Court is required to have regard to the applicant’s history of traffic offences, any relevant rehabilitation that has been undertaken, the risk to the safety of other road users, the availability of alternative transport including public transport, and other matters. An application for the issue of a restricted licence is a civil proceeding.
The appellant submitted that the Magistrate should first have decided the appropriate penalty in the criminal proceedings. In doing so, the Magistrate should have taken into account the hardship that would be occasioned by disqualification from holding a driver licence and the fact that the appellant had undertaken a driver education course. Only after deciding the criminal proceedings should the Magistrate have turned his mind to the question of whether it was appropriate to issue a restricted driver licence.
This submission is essentially correct. Punishment is an important sentencing purpose under s 7 of the Sentencing Act. Depending upon the circumstances of the particular offender, a particular penalty (including a fine and any disqualification), may represent a greater or lesser degree of hardship or punishment. A 12 month disqualification from holding a driver licence is much more punitive to a person who requires their driver licence on a daily basis than it is to a person who drives only irregularly.
However, when considering the degree of punishment that will result from disqualification of holding a driver licence, it may also be relevant to consider the availability of a restricted driver licence and the likelihood that a restricted licence will be granted, ameliorating the hardship that may otherwise be associated with disqualification. Such an approach does not involve erroneous conflation. Indeed, any other approach would be artificial.
The appellant had submitted to the Magistrate that the recording of a conviction and disqualification from holding a driver licence would cause particular hardship to him because it would interfere with his employment. No doubt, any loss of a driver licence occasions general hardship; for example, it restricts the ability of a person to access social events. The general consequences of the loss of a driver licence are obvious and do not need to be expanded upon.
The reasons of the Magistrate were brief. Nonetheless, his Honour weighed the particular hardship that would be occasioned by disqualification from holding a driver licence (inability to pursue employment) against the availability and likely grant of a restricted driver licence (which would neutralise that particular hardship). This approach does not imply that His Honour overlooked the general hardship that is inevitably associated with the loss of a driver licence.
On the appeal, the appellant’s argument focused on the punitive effect of the disqualification from holding a driver licence. However, one should not forget the significance of protection of the community. Although disqualification from holding a driver licence also serves the sentencing purpose of punishment, the dominant sentencing purpose that is served is protection of the community.
Was the penalty manifestly excessive?
On the appeal, the appellant’s submissions focused on a non-conviction order and associated licence retention rather than on the amount of the fine.
The maximum available fine of $1500 relates to alcohol readings of between .08 g and .15 g per 210L of breath. The appellant’s alcohol reading was towards the bottom of that range. There were no particular aggravating features. The appellant had undertaken a driver education course; to some extent addressing the sentencing purpose of protection of the community. The appellant would have experienced some inconvenience (punishment) associated with attending that course. There was an early plea and the appellant was a man of prior good character.
Given these circumstances, the Magistrate imposed a heavy penalty. His Honour fined the appellant the sum of $600 and disqualified him from holding a driver licence for the default period of 12 months. Inferentially, the starting point was a fine of $800, which was reduced under s 35 of the Sentencing Act by 25% for the plea at the earliest opportunity.
Although the penalty was heavy, I am not satisfied that it exceeded the available range.
By way of comparison, in Proud v Sladic, the respondent had been convicted of driving with 0.064 g of alcohol per 210L of breath. He had been fined $550 and disqualified from driving for the minimum applicable period. The Court determined that the imposition of a conviction had been a proper exercise of the sentencing discretion, and allowed the appeal against the order of a single judge who had set aside the decision of the sentencing court.
Orders
The appeal is dismissed.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 24 August 2015 |
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