Mann v Tremethick (No 2)
[2023] ACTSC 31
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mann v Tremethick (No 2) |
Citation: | [2023] ACTSC 31 |
Hearing Date: | 28 February 2023 |
DecisionDate: | 3 March 2023 |
Before: | McWilliam AsJ |
Decision: | See [52] |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from sentence – whether sentence was manifestly excessive |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 33 Magistrates Court Act 1930 (ACT) ss 207, 208 Road Transport (Safety and Traffic Management) Act 1999 (ACT) ss 7, 7A |
Cases Cited: | Balthazaar v The Queen[2012] ACTCA 26 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | Jayden Charles Mann ( Appellant) David Matthew Tremethick ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) E Roff ( Respondent) |
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 34 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate B Campbell Date of Decision: 29 August 2022 Case Title: David Matthew Tremethick v Jayden Charles Mann Court File Number: AM 3634/2009 |
McWilliam AsJ
The appellant, Mr Jayden Mann, pleaded guilty on 2 August 2022 in the Magistrates Court of the Australian Capital Territory to four charges of driving-related offences.
(a)On 15 April 2022, drive while disqualified, repeat offender, contrary to s 32(1)(a) of the Road Transport (DriverLicensing) Act 1999 (ACT) (CC2022/3637).
(b)On 14 July 2022:
(i)Aggravated dangerous driving, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Act) (CC2022/6770).
(ii)Drive with prescribed drug in oral fluid, repeat offender, contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (CC2022/6771).
(iii)Drive while disqualified, repeat offender, contrary to s 32(1)(a) of the Road Transport (DriverLicensing) Act 1999 (ACT) (CC2022/6772).
On 29 August 2022, the magistrate in the court below sentenced the appellant to an aggregate sentence of 22 months’ imprisonment, commencing on 14 July 2022 and ending on 13 May 2024, with a non-parole period of 14 months. He is therefore eligible for parole on 13 September 2023.
The present appeal concerns only the aggravated dangerous driving offence, which was the most serious of the offences and for which the appellant was sentenced to 18 months’ imprisonment. The sole ground of appeal is that the sentence for that offence was manifestly excessive.
The Court’s power on appeal
The Court’s jurisdiction in relation to appeals in criminal matters is exercised pursuant to Part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), which includes appeals against sentences imposed by it, regulated by divs 3.10.1 and 3.10.2 (in particular, ss 207 and 208) of that statute.
The nature of this appeal is by way of rehearing on the evidence before the magistrate and any other evidence that the appellate court permits to be adduced: Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at [4]. In this regard, the appellant sought to put further evidence before the Court by way of a letter, which explained changes in his personal circumstances since he was incarcerated. It was received on the basis that it would be taken into account pursuant to s 214 of the Magistrates Court Act on resentence if error was first established, following a similar approach taken in Millard v Pomeroy [2022] ACTSC 319 at [12]-[21].
Principles applying to an appeal on rehearing
In summary, the starting point is restraint. A sentence imposed in the Magistrates Court will not be set aside simply because the appellate court, on hearing the appeal, might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15], Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25].
The question is whether error has been established. The Court will exercise its powers to intervene only where, having regard to all the evidence before it, including any further evidence admitted on the appeal, it is established that the order appealed from is the result of a legal, factual or discretionary error. That might be through a specific error, such as the failure to consider a relevant consideration or misapplication of principle (see House v The King (1936) 55 CLR 499 at 505). Alternatively, the error, though not identifiable, might be inferred from the sentence being manifestly excessive/inadequate, unreasonable, or plainly unjust or wrong: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [26] per French CJ, Hayne, Kiefel and Bell JJ; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321(Dinsdale) at [6]. Given the appellant was self-represented, both types of error (specific and inferential) have been considered in the present appeal.
Even if error is established, the appellate court is not required to intervene if satisfied that the sentence is nevertheless appropriate: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35]. There is a strong resistance against appellate ‘tinkering’ with sentences: Dinsdale at [62].
Was the sentence imposed for the aggravated dangerous driving offence manifestly excessive?
The appellant argued that the sentence imposed on him for the said offence was manifestly excessive. His complaint was based on a belief that there were a number of other people who had been convicted of the same or similar driving offences, some of whom were repeat offenders, and they had not been given sentences anything like what was imposed on him. He had expected a sentence of approximately six months and, as I understood the point, he believed that the 18 month sentence was so far outside the range of appropriate sentences as to be unjust or wrong.
10. Consideration of that complaint requires an understanding of both the legal principles governing the error alleged and the reasons of the sentencing magistrate.
The approach to determining whether a sentence is manifestly excessive
11. The principles applying to a complaint of manifest excess are well-known and have been set out in various ways in cases such as Kelly v The Queen [2021] ACTCA 15 at [42]; and NC v The Queen[2017] ACTCA 31. In the latter case the Court of Appeal extracted at [51] the principles set out in Dalton v Queen[2015] ACTCA 48 at [18] as follows:
·Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: [Dinsdale].
·The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen[2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen[2014] HCA 2; [253 CLR 58] at [61].
·In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
·It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen[2005] HCA 25; (2005) 228 CLR 357 at [28]; R v Abbott[2007] VSCA 32; (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen[2012] ACTCA 26 at [61].
12. In Tracey v The Queen [2020] ACTCA 51, the Court of Appeal stated at [38]:
To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.
13. The recognition that a sentence may warrant appellate intervention if it is manifestly excessive is tied to the notion that the sentence imposed should never exceed the minimum that is necessaryto accomplish relevant sentencing objectives: see Thorn v Laidlaw [2005] ACTCA 49 at [30], citing Hoare v The Queen (1989) 167 CLR 348 at 354; Veen v The Queen (No 2) (1988) 164 CLR 465 at 472.
The offence and the agreed facts
14. Section 7 of the Act provides that a person must not drive a motor vehicle furiously, recklessly, or at a speed or in a way that is dangerous to the public, on a road or road related area.
15. Section 7A of the Act deals with when that offence will be aggravated. The two circumstances applicable here were that the appellant failed to comply as soon as practicable with a request or signal given by a police officer to stop the motor vehicle (s 7A(1)(a)(i)), and that the appellant was driving at a speed that exceeded the speed limit by more than 30 percent (s 7A(1)(a)(v)).
16. While that section also includes driving with a prescribed drug in oral fluid as an aggravating circumstance, it was not taken into account as an aggravating circumstance for this offence because it was the subject of a separate charge.
17. The maximum penalty in terms of imprisonment was one year for the offence under s 7 and three years for the aggravated offence under s 7A.
18. The agreed facts of the offending were before the Court and were helpfully summarised by the respondent in written submissions. I have drawn from those documents in the following description of what occurred.
19. At 1:00am on Thursday, 14 July 2022, police attempted to conduct a traffic stop on a car driven by the appellant on Sulwood Drive in Wanniassa. The appellant failed to stop.
20. He instead entered an intersection against a red turn arrow and drove at speed. There was then an extensive police pursuit over ten minutes from Wanniassa to Lawson, a distance of approximately 25 km. During that pursuit:
· The appellant’s vehicle reached maximum speeds of approximately 200 km/h in a 100 km/h zone, 173 km/h in a 90 km/h zone, 140km/h in an 80km/h zone, and 170 km/h in a 60 km/h zone.
· The 60 km/h zone through which the appellant drove was a residential area. A vehicle was reversing out of the driveway. At that time, the appellant was travelling at approximately 90 km/h. The appellant saw the reversing vehicle and took evasive action to avoid it by slowing down and driving around it.
· The appellant also had a passenger in the car throughout the pursuit.
· The vehicle entered two intersections against red traffic lights.
· The vehicle drove on the incorrect side of the road, including into the path of an oncoming vehicle.
· The vehicle straddled a dividing line on the road and drove on a footpath.
· The pursuit only ended after police successfully deployed tyre deflation devices. The appellant was only arrested after being pursued on foot.
Reasons of the sentencing magistrate
21. The reasons of the sentencing magistrate were given in the context of a busy list and in a hearing that occurred after standard court hours. The court endeavoured to engage with the legal representatives during the hearing and the reasoning on sentence is, to some extent, apparent from the discussion during the hearing itself. It was agreed by the legal representative for the appellant at first instance that no sentence other than a term of fulltime imprisonment was appropriate.
22. Given that concession, the magistrate expressly turned her mind to the maximum penalty for the aggravated offence, as part of the reasons on sentence, stating the relevant maximum of three years’ imprisonment.
23. The magistrate considered the objective seriousness of the offence. Her Honour referred to the features set out above during the hearing, save for the fact that there was a passenger in the vehicle at the time, and considered that it was probably one of the more significant examples of dangerous driving that she had seen in all her years as a magistrate.
24. Her Honour took into account that the offending occurred at 1:00am and that the period of time was relatively short, but balanced this against the speeds that were driven, the distance that was driven in that time, and the manner in which the car was driven as outlined above.
25. It was conceded that the conduct was a serious example of offending. As part of that consideration, her Honour found there was a high degree of moral culpability in the conduct.
26. The magistrate took into account the subjective circumstances pertaining to the appellant, primarily through a pre-sentence report that had been prepared and which referred particularly to the appellant’s childhood. It is unnecessary to go into further detail about those matters here.
27. There was some discussion of the appellant’s reason for driving in the first place, which was said to be a need to obtain Panadol for his young child who was teething. The magistrate also took into account the appellant’s family or dependants, and the impact that a term of imprisonment would have on the appellant’s young daughter.
28. The magistrate took into account the appellant’s criminal history, discussing the history in detail during the hearing, and then referring back to that in her Honour’s reasoning upon sentence as a ‘pretty lengthy’ criminal record. Her Honour explained how she had taken that into account, stating that she does not look at the record to see how she can punish the offender again for that conduct today, but rather to see what leniency she could afford the appellant. Her Honour’s view was that it was difficult to afford leniency when the appellant was not a young man who had never been in trouble before coming before the court for the first time.
29. The magistrate was mindful of the sentencing objectives. She referred to rehabilitation as a sentencing objective that took less prominence in the circumstances of this case. In her Honour’s view, the sentencing objectives that were of most critical importance were protection of the community, general deterrence and public denunciation of the conduct. As part of that finding, her Honour referred to the clear comments from the Legislature about why these sorts of dangerous driving matters are so dangerous, in that they put the police, the driver, passengers and the general public at risk.
30. Her Honour also considered the overlap between the other offences committed as part of the same course of conduct and indicated that she had done her best to take that overlap into account.
31. Finally, the magistrate took into account the plea of guilty, and discounted the sentence that would otherwise have been imposed (two years) by a discount of 25 percent, which reduced the ultimate sentence to imprisonment for 18 months. In reaching that conclusion, her Honour had earlier directly explained the process by which she reached the decision, which included ensuring that what was imposed by way of a sentence of imprisonment was the minimum that could be imposed, taking into account everything that had been discussed, and then looking at the total and making sure that, where she could, she made the sentences overlap. Her Honour also exercised her discretion to backdate the sentence to commence from the date the appellant was first arrested.
Determination – no error established
32. What the transcript reveals, as summarised above, is that proper consideration was given to each of the relevant considerations set out in s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), objective and subjective, so far as they were applicable to the appellant, as well as proper consideration of the sentencing objectives and how they applied to the circumstances of the particular offending. Further, as her Honour applied the maximum sentencing discount, there can be no suggestion of any failure in that regard.
33. The conduct as described above was objectively of a most serious kind. The circumstances of aggravation gave rise to a lengthy police pursuit and continued during the police pursuit. This was not a short-lived failure to stop. Nor was the second aggravating feature of speed a momentary exceedance of 30 percent of the speed limit. It cut across multiple speed zones, one of which was residential where there was a car reversing.
34. Then there was the further aggravating subjective feature of the offence, which was that it was committed while the appellant was in the community on conditional liberty, by reason of a previous good behaviour order as well as a bail undertaking that had been entered into in relation to the offence (in April 2022) of driving while disqualified.
35. The magistrate’s reference to the Legislature’s intention as part of the sentencing objectives was appropriate in circumstances where the Explanatory Statement to the Road Transport Legislation Amendment Bill 2014 (ACT) expressly records (at 1) that dangerous driving while evading police, driving intoxicated and speeding pose the greatest risk to the general community.
36. Her Honour’s explanation of how the appellant’s criminal record was to be taken into account was also correct, as to which see Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
37. Having found no distinct or identifiable error in the process that may have led to the imposition of a manifestly excessive sentence, that leaves the question of whether the sentence was unreasonable or plainly unjust for no reason other than that it is manifestly too long.
38. In this regard, I accept the submissions of the respondent that none of the cases that might be of assistance are in fact comparable. Current sentencing practice is a mandatory consideration under s 33(1)(za) of the Sentencing Act. However, this is a case where, because of the variety of circumstances that fall within the aggravated offence of dangerous driving itself, with each aggravating circumstance either present individually or in combination, it is very difficult to say that there was any clear pattern or sentencing practice established, let alone that a sentence of 18 months falls outside of that. The question of comparable cases is further complicated by the fact that although an indictable offence, it is capable of summary disposal, so that the offences are often heard and determined in the Magistrates Court without publication of reasons.
39. Nevertheless, and with a view more to demonstrating the lack of comparable cases rather than their existence, the Court was taken to R v Goolagong (No 2) [2021] ACTSC 131 (Goolagong), R v Seymour [2021] ACTSC 152 (Seymour) and R v Collins [2019] ACTSC 302 (Collins).
40. The respondent accepted that it was possible to identify cases where more lenient sentences were imposed. However, it was argued that establishing that fact alone was insufficient. As Hoeben CJ stated in Wilson v R (Cth) [2020] NSWCCA 211 at [79]:
[M]anifest excess is not established simply by a comparison of sentences imposed in other cases which are often markedly different. To warrant intervention, misapplication of principle must be established (Ngati v R [2018] NSWCCA 32 at [34]). As was set out in Vandeventer v R…, there will always be cases where other offenders appear to have been dealt with more leniently. What must be achieved is consistency and application of relevant principle, not numerical or mathematical equivalence.
41. With that in mind, I will briefly deal with the three cases on which the respondent submitted. In Goolagong, the offender was sentenced for 14 offences across two series of offending, which involved driving, property and violent offences. Two of those offences were aggravated dangerous driving contrary to ss 7 and 7A of the Act. The circumstances of aggravation were failing to stop and being a repeat offender, so that the maximum penalty applicable (relevantly in terms of imprisonment) was five years.
42. The first offence involved failing to stop when police requested the offender to do so, and then driving 100 km/h in a 60 km/h zone. The second offence involved a police pursuit while the offender was driving a stolen car. He failed to stop, drove through a red light and drove at 110 km/h in an 80 km/h zone. There was no evidence as to the duration of either police pursuit. At the time of the offences, the offender was on conditional liberty by way of a good behaviour order attached to a suspended sentence.
43. The sentence imposed was one year and seven months for each of the offences, reduced from two years on account of the offender’s plea of guilty. The respondent accepted that this represents the same starting point as that involved in the appellant’s sentence in the context of a higher maximum penalty. However, the appellant’s offending here was objectively more serious than that in Goolagong, in that he drove at twice the speed limit on residential and arterial roads, drove on the wrong side of the road, entered intersections against red lights, drove on a footpath and had a passenger in the car. The subjective circumstances in Goolagong were also very different, in that the offender was a young indigenous man who had experienced significant childhood disadvantage such that the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 applied. Further, there was evidence before the Court of a psychological assessment which indicated that the offender suffered from attention-deficit/hyperactivity disorder, foetal alcohol syndrome and profound cognitive impairment, leading to the sentencing judge accepting that the principles from R v Verdins [2007] VSCA 62; 16 VR 269 applied, which consequently reduced the offender’s moral culpability.
44. In Seymour, the offender was sentenced for a number of driving offences, which included two charges of aggravated dangerous driving also occurring in the early hours of the morning. For the first offence, the offender failed to stop for police, made a U-turn and drove away, reaching speeds of approximately 107 km/h in a 60 km/h zone and 170 km/h in an 80 km/h zone before crossing onto the wrong side of the road. Police discontinued the pursuit. For the second offence, which was committed a short time after the first following an incident with another police officer, the offender again failed to stop and drove away at approximately 140 km/h in an 80 km/h zone. He slid the vehicle on the road and drove away on the wrong side of the road before colliding with a guardrail. At the time of the offences, the offender was subject to a good behaviour order. He was sentenced to 14 months’ imprisonment for each offence, reduced from 18 months on account of pleas of guilty.
45. As can be seen from the comparison, the circumstances of the offending in that case were less objectively serious in terms of duration and conduct and there were also strong subjective features involved, in that there was severe substance abuse disorder which developed as a result of family violence, the offender had demonstrated a commitment to rehabilitation and the offender had expressed remorse for offending and apologised to the police officer involved. Further, although there was a lengthy criminal history, there were no like driving offences.
46. In Collins, the offender was sentenced for seven driving and property related offences. He was directed to stop his car by police but drove away at speed along a footpath, causing a pedestrian to take evasive action. The offender was on conditional liberty at the time. Both parties agreed that the offending was in the low range of objective seriousness. The sentence imposed was 20 months’ imprisonment, reduced to 15 months on account of an early guilty plea.
47. The appellant also requested the Court to consider two recent sentences imposed in the Magistrates Court in relation to Mr Justin Cordy, on 12 December 2022 and 18 January 2022, which involved the offender there being sentenced for other driving offences, including failing to stop. The appellant was aware of these cases from his incarceration and believed that in those cases the sentences of imprisonment that were imposed were significantly shorter. The respondent was in a position to provide the Court with assistance in relation to those matters after the hearing, with notice provided to the appellant. Although the conduct for which Mr Cordy was sentenced involved a failure to stop, there were no charges of aggravated dangerous driving in respect of the sentences pertaining to Mr Cordy.
48. Having reviewed the authorities summarised above, it is not the case that any of the offenders involved were sentenced more leniently. Yes, there were sentences of imprisonment that were less numerically than what was imposed upon the appellant here. However, in each of the cases considered, the offender’s conduct was not as objectively serious, and in some respects, the different subjective circumstances can be seen to have impacted significantly on the ultimate term of imprisonment imposed.
49. Even if it could be said that the sentences were more lenient purely from the mathematical perspective, what the cases demonstrate is that the magistrate here acted consistently with the principles articulated in those cases. While imposing an 18-month term of imprisonment for an aggravated dangerous driving offence might, without more, seem severe, when regard is had to the particular circumstances of aggravation, and then the subjective circumstances of the appellant being on a bond of good behaviour, combined with the appellant’s other criminal antecedents, it has not been established that the sentence was manifestly excessive in the sense of being unreasonable or plainly unjust.
Conclusion
50. The sentencing discretion given to a judge or magistrate at first instance is broad and deliberately so, because of the vast number of competing considerations that must be weighed and balanced. It is understandable why the appellant in this case may feel somewhat aggrieved if he is aware of people who may have had similar features present in the offences for which they were convicted and sentenced, such as a failure to stop or driving in significant excess of the speed limit, and those sentences resulted in terms of imprisonment that were less than that imposed upon the appellant. However, in the appellant’s case, he was sentenced for an aggravated offence and the conduct itself fell at the upper end of the circumstances of aggravation. Having reviewed the material before the court below, the reasons of the magistrate and the cases bearing upon the issue, including the additional cases named by the appellant, no specific or inferential error has been established.
51. For the above reasons, the appeal will be dismissed and the sentence of the court below confirmed. The respondent drew attention to what appears to have been some administrative confusion as to the commencement and end dates of the sentence imposed, which has a flow on effect for the other sentences that were imposed, and which have not been the subject of appeal. Accordingly, I will confirm the sentence below but with orders in a form that provides for greater specificity.
52. The orders are as follows:
(1) The appeal is dismissed.
(2) Pursuant to s 218(1)(a) of the Magistrates Court Act 1930 (ACT) the sentence in the court below is confirmed as follows:
(i) In respect of the offence of aggravated dangerous driving (CC2022/6770), 18 months’ imprisonment, to commence on 14 July 2022 and end on 13 January 2024; and disqualification from holding or obtaining a driver’s license for a period of 24 months, to commence on 29 August 2022 and end on 28 August 2024.
(ii) In respect of the offence of driving while disqualified (repeat offender), (CC2022/3637), a fine of $2,000 with no time to pay, to be served as a term of imprisonment pursuant to s 116ZP of the Crimes (Sentence Administration) Act 2005; and disqualification from holding or obtaining a driver’s license for a period of 24 months, to commence on 29 August 2022 and end on 28 August 2024.
(iii) In respect of the offence of drive with drug in oral fluid (repeat offender) (CC2022/6771), one month’s imprisonment, to commence on 14 December 2023 and end on 13 January 2024; and disqualification from holding or obtaining a driver’s license for a period of 12 months, to commence on 29 November 2025 and end on 28 November 2026.
(iv) In respect of the offence of drive while disqualified (repeat offender) (CC2022/6772), two months’ imprisonment, to commence on 14 December 2023 and to end on 13 February 2024; and disqualification from holding or obtaining a driver’s license for a period of 24 months, to commence on 29 August 2024 and end on 28 August 2026.
(v) In respect of the offence of burglary (CC2018/10159), five months’ imprisonment, to commence on 14 December 2022 and end on 13 May 2024.
(vi) The total period of imprisonment is 22 months, to run from 14 July 2022 to 13 May 2024. The non-parole period is 14 months, to run from 14 July 2022 to 13 September 2023.
(vii) The total period of disqualification from holding or obtaining a driver’s license is 51 months, to run from 29 August 2022 to 28 November 2026.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: T Dunbabin Date: |
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