Macpherson v Thorncraft
[2014] ACTSC 277
•23 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Macpherson v Thorncraft |
Citation: | [2014] ACTSC 277 |
Hearing Date(s): | 23 September 2014 |
DecisionDate: | 23 September 2014 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. Decision of Magistrates Court amended to accord with conditions specified by the Magistrate. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Appeal against sentence – offences of driving with prescribed concentration of alcohol and failure to comply with standards relating to tyres – whether sentences manifestly excessive – non-conviction order |
Legislation Cited: | Crimes (Sentencing)Act 2005 (ACT) s 17(2) Magistrates Court Act 1930 (ACT) ss 208, 219F Road Transport (Vehicle Registration) Regulation 2000 (ACT) s 109(2) |
Cases Cited: | House v The King (1936) 55 CLR 499 Proud v Sladic [2014] ACTCA 26 R v Ellis (1993) 68 A Crim R 449 |
Parties: | Ian Hugh Macpherson (Appellant) Andrew Thorncraft (Respondent) |
Representation: | Counsel Ms K McCann (Appellant) Ms P Burgoyne-Scutts (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) Director of Public Prosecutions (ACT) (Respondent) | |
File Number: | SCA 31 of 2014 |
MURRELL CJ:
Appeal
On 29 April 2014, the Magistrates Court sentenced the appellant for two offences committed on 19 January 2014. The first was a breach of s 19(1) of the Road Transport (Alcohol and Drugs Act) 1977 (ACT), being the offence of driving with a prescribed concentration of alcohol, 0.085 grams of alcohol per 100 ml of blood, a level 3 offence committed by a first offender. The maximum available penalty is six months’ imprisonment and/or a fine. An automatic disqualification period of 12 months applies, and there is a minimum period of disqualification of three months.
The second offence was a breach of s 109(2) of the Road Transport (Vehicle Registration) Regulation 2000 (ACT), being the offence of driving a motor vehicle which did not comply with tyre standards. The maximum available penalty is a fine of $2800.
In relation to the first matter, the Magistrate convicted the appellant and fined him $350, disqualifying him for the minimum period of three months. In relation to the second matter, her Honour convicted the appellant and fined him $150.
The appellant appealed pursuant to s 208 of the Magistrates Court Act 1930 (ACT).
It was accepted that an appeal to this court pursuant to the Magistrates Court Act is an appeal of the nature described in House v The King (1936) 55 CLR 499. In order to succeed, the appellant must demonstrate either express error or inferred error. In this case, the ground of appeal is that the sentences imposed by the Magistrates Court were manifestly excessive. In other words, the appellant argues that it can be inferred that there must have been a misapplication of principle because the sentences are so manifestly excessive.
In R v Ang [2014] ACTCA 17 at [24], the Court of Appeal (Refshauge, Penfold and Ross JJ) said that: “A claim of manifest inadequacy or excess is a claim that despite the absence of identifiable error in the process, the outcome is so dramatically inappropriate that error of some kind must be inferred.”
In R v Ellis (1993) 68 A Crim R 449, Hunt CJ at CL at 461, said in relation to manifest excess:
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
The appellant claims that the Magistrate’s sentence was manifestly excessive in that her Honour should have imposed a non-conviction order under s 17(2)(a) of the Crimes (Sentencing)Act 2005 (ACT) (Sentencing Act).
Facts
At about 12.24 am on 19 January 2014, at Bonython, police stopped the appellant’s vehicle for a random breath test. The appellant exited the vehicle. In the opinion of police, he was obviously under the influence of alcohol. Police described him as “moderately affected.” He was slurring his words and he was flushed.
The driving conditions were good and the traffic was light. There were no other occupants of the vehicle. The tyres of the appellant’s vehicle were excessively worn.
The appellant had been drinking at a friend’s place at Boorowa (a considerable distance from Bonython) over a four-hour period. He left Boorowa at about 9 pm, then pulled over to sleep by the side of the road because he was tired. Three hours later he proceeded, and it was at that stage that he was apprehended by the police.
Offence and circumstances
Before the Magistrates Court, the appellant’s legal representative conceded that the offence of driving with a prescribed concentration of alcohol was a serious offence and that, the appellant was a mechanic who should have known better in relation to driving with non compliant tyres.
The appellant was 53 years of age, separated, with three adult sons. He had been driving for 36 years with a very long period free of infringements (since 1991). He provided strong character references. He had completed a “kNOw the Risk” course. He was contrite and remorseful. As he worked as an auto-electrician, the loss of his licence would cause difficulties in relation to his employment, although it would not result in loss of his job.
It was against this background that the Magistrates Court considered the submission concerning s 17 of the Sentencing Act. Section 17 gives a sentencing court a discretion to make a non-conviction order, which can either be an order directing that a charge be dismissed or a good behaviour order. Section 17 then provides:
(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
It is plain that the court must consider the three matters set out in subs (3) but otherwise has a very broad discretion as to the matters that may be taken into account when determining whether a non-conviction order is the appropriate sentencing outcome.
In this case, the Magistrate first acknowledged that she had been asked to consider the provisions of s 17, then noted that she found no reason to exercise her discretion and do otherwise than follow the usual course and record a conviction. Her Honour noted the maximum penalty, considered the objective seriousness of the offences, and considered the subjective circumstances of the appellant, including his personal circumstances and his traffic history. Her Honour noted the importance of general deterrence in relation to matters involving drink driving and the sentencing purposes of specific deterrence and protection of the community as well as denunciation and accountability.
In the end, her Honour was not disposed to proceed under s 17 but, taking into account the appellant’s subjective circumstances, instead decided to impose low fines and the shortest available disqualification period.
It is difficult to discern any error in her Honour’s approach.
Previous cases
Recently the Court of Appeal considered a similar argument in the matter of Proud v Sladic [2014] ACTCA 26. In that case, an offender had been sentenced for a level 2 offence of driving with a prescribed concentration of alcohol in his blood, being a reading of 0.064 grams of alcohol per 100 ml of blood. He had no criminal or traffic offences in the preceding two decades and had never been convicted of a drink driving offence. He was convicted and fined $220 and disqualified for the minimum period of two months. A single judge overturned the Magistrate’s decision, but the Court of Appeal found that the judge was wrong to do so.
The Court of Appeal referred to the ACT sentencing database, noting the caution with which the figures in the database should be approached, particularly because the database does not distinguish between levels of drink driving offences. However, the Court of Appeal noted at [41] that what is plain is that the vast majority of offenders who come before the Magistrates Court for an offence of driving with a prescribed concentration of alcohol in their blood are convicted and punished by way of a fine. At [42], the Court said:
One would expect that to be so. The ordinary consequence of a finding of guilt is the recording of a conviction: Balthazaar v R [2012] ACTCA 26 at [53]. The failure to record a conviction is an exceptional outcome: Stark v Plant [2010] WASCA 74 at [18].
The Court went on to consider the proper approach to s 17, although it was not, strictly speaking, necessary to do so. At [47] the Court noted that the three matters referred to in s 3 may justify the imposition of a non-conviction order, and that s 17 said nothing about the need for “exceptional circumstances” before a non-conviction order could be imposed.
The appellant’s real complaint in these proceedings, seems to be that the matter that came before the learned Magistrate immediately prior to this matter, which was very similar to this matter in terms of its objective seriousness and the relevant subjective circumstances, lead to the Magistrate “hesitantly” determining that she would exercise her discretion under s 17 to make a non-conviction order.
I can understand that the appellant is upset that this matter did not result in the same outcome. However, there were distinctions between the two cases.
A comparison of one case with the immediately preceding matter is not a proper approach to the question of whether the sentence imposed is manifestly excessive. The proper comparison is with general sentencing patterns. There is nothing before this Court that suggests otherwise than that the sentence imposed by the Magistrate was well within the general sentencing pattern for offences of this nature. Of course, the critical sentencing parameter is the maximum available penalty; in this case, six months’ imprisonment. The Magistrate imposed a lenient sentence when one has regard to the maximum available penalty.
The appellant provided a number of cases by way of comparison. What is clear is that there is a range of outcomes. In some cases, non-conviction orders are imposed. In other cases, they are not. The ACT Sentencing Database shows that the vast majority of offenders are dealt with by way of a fine. There is nothing in the Database that provides support for the appellant’s argument on this appeal. The observations made in Proud v Sladic are entirely apposite in the present case. There is no available argument that the sentence imposed by the Magistrate fell outside the available range or compelled the conclusion that her Honour must have misapplied principle in reaching such an outcome.
Conclusion
The appeal is dismissed.
Pursuant to s 219F of the Magistrates Court Act I amend the decision of the Magistrates Court in relation to the restricted licence and the appellant will be granted a C-class licence to expire three months’ from today to coincide with the expiration of the disqualification period. The conditions of the licence will be those specified by the Magistrate on page 8 of the transcript.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 5 November 2014 |
2
4