McKellar v Woolcock

[2013] ACTSC 225

ANDREW MCKELLAR v CAMERON WOOLCOCK
 [2013] ACTSC 225 (30 October 2013)

CRIMINAL LAW – appeal from Magistrates Court – non-conviction order: s 17 Crimes (Sentencing) Act 2005 (ACT) – whether sentence manifestly inadequate – where no evidence of assertions made by respondent from bar table – where respondent repeat offender

CRIMINAL LAW – appeal from Magistrates Court – non-conviction order: s 17 Crimes (Sentencing) Act 2005 (ACT) – whether error by Magistrate in failing to state basis upon which order made – incumbent upon Court applying s 17 to make clear what matters taken into account

Crimes (Sentencing) Act 2005 (ACT), s 17
Magistrates Court Act 1930 (ACT), ss 219B, 219F(8)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 38 of 2013

Judge:             Burns J            
Supreme Court of the ACT

Date:              30 October 2013        

IN THE SUPREME COURT OF THE     )
  )          No. SCA 38 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ANDREW MCKELLAR
Appellant

v        

CAMERON WOOLCOCK

Respondent

ORDER

Judge:  Burns J
Date:  30 October 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The orders made by the Magistrate on 28 May this year are set aside. 

2. The matter is remitted to the ACT Magistrates Court for the respondent to be resentenced according to law.

3. The appellant is to pay the respondent’s costs of and incidental to the appeal.

1. This is an appeal brought by the informant in proceedings in the Magistrates Court with respect to the disposition of those proceedings by a Magistrate.

2. On 28 May this year, the Magistrate made an order, pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT), effectively making a non-conviction order with respect to the proceedings that were then before the Magistrate and placing the respondent on a good behaviour order for a period of two years.

3. I will digress for a moment to give a short description of the proceedings that were then before the Magistrates Court.  On 19 April 2013, it is alleged that the respondent as a repeat offender drove whilst disqualified.  On that date, he was apparently observed by police to be driving a motor vehicle, the vehicle was stopped and inquiries were made by the police as to his identity and the respondent is alleged to have produced an ACT driver’s licence.  The police were satisfied that the person depicted on the licence was the respondent.

4. A check of police indices subsequently revealed that the respondent was a disqualified driver.  There appears to be no dispute that on 4 September 2012 the respondent appeared before the same Magistrate in the Magistrates Court on a charge of driving whilst his licence was suspended. 

5. On that occasion, the Magistrate convicted him and fined him $100 and disqualified him from holding or obtaining a licence for a period of 12 months.  That period of 12 months apparently commenced on 4 September 2012 and therefore would have expired on 3 September this year.

6. As such, prima facie, at the time that the respondent was driving on 19 April 2013 he was a disqualified driver.

7. The respondent first appeared in the Magistrates Court in May this year at which time the matter was adjourned until 28 May.  On 28 May, the respondent who was self-represented in the proceedings in the Magistrates Court entered a plea of guilty.

8. The transcript of the proceedings in the Magistrates Court on 28 May has been placed before me.  The Magistrate asked the respondent what he wanted to say in relation to the matter after the Statement of Facts had been read by the prosecutor.  The respondent replied that he required his licence for work purposes as he is a shift worker.  He stated that he understood that it is a repeat offence.  He then went on to state the following:

   I was contacted by Canberra Connect and returned to collect my licence from Canberra Connect two weeks prior to being pulled over by police officers.  They had told me that it was a returned licence.  I didn’t need to get a photo taken or anything like that so I was under the impression that my licence had been returned.  That’s it.

9. Her Honour then asked the respondent whether he had appeared before the Court in September, and presumably her Honour meant September 2012, and whether he at that time was disqualified for a period of 12 months and knew that he was disqualified. The respondent  answered, “yes”.

10. He then went on to say:

    Under the information given to me by Canberra Connect in returning my licence to me I was under the impression that I was able to drive again.

11. Her Honour then called upon the respondent to tell her something further about his work circumstances.  He indicated that he was a shift worker for Southern Cross Television and he would work anywhere between 6 am and 8 pm at night.  He indicated that there were problems with public transport with respect to some of those shifts.

12. The Magistrate asked what would happen to him if he lost his licence for a period of two years and he answered that he would lose his job.

13. Her Honour then went on to deal with the matter pursuant to s 17 of the Crimes (Sentencing) Act  as I have said by making a non-conviction order, as such, there was no disqualification imposed by her Honour.

CONSIDERATION

1. In my opinion, the Magistrate fell into error in two ways.  First, on the material which was before her Honour, the sentence which she has imposed was manifestly inadequate.  There was no evidence before her Honour which would suggest that there were circumstances surrounding the driving of the motor vehicle by the respondent on 19 April this year which would significantly mitigate his culpability for that offence.  That is not to say that such evidence could not have been placed before her Honour but the fact is that no such evidence was actually before her Honour.

2. I am concerned by the exchange between her Honour and the respondent with respect to the respondent’s state of mind about whether he was entitled to drive based upon his interaction with Canberra Connect and in particular having his licence returned to him.

3. On the material which was before her Honour it does not appear that the respondent was asserting that he had been told by anybody that he was entitled to continue driving.  He said to the Magistrate that because his licence had been returned to him by Canberra Connect he was under the impression that he was entitled to drive.

4. The respondent, of course, was unrepresented in those proceedings and as such I would not place too much weight in the current proceedings upon the precise form of his statements to the Magistrate.  Suffice it to say that on the material before the Magistrate there was really nothing to suggest that there were circumstances which significantly mitigated the respondent’s culpability for his driving of the motor vehicle on 19 April this year.

5. In addition, there was no evidence before the Magistrate that the respondent would lose his employment if he was not to hold a driver’s licence.  One would have expected that if her Honour was to place significant weight upon such an assertion that there would need to be some material supporting it placed before the Court.

6. The simple fact is that the respondent was before the Court charged with an offence of driving whilst disqualified as a repeat offender only having seven months previously been dealt with for an offence of driving whilst suspended.  On the material which was before her Honour there could be no justification for the imposition of a non-conviction order.

7. The second way in which I am satisfied the Magistrate fell into error was in failing to properly delineate the way in which she applied s 17 of the Crimes (Sentencing) Act 2005.

8. Her Honour does not make it clear what matters she took into account in determining that it was appropriate to deal with the matter by way of a non-conviction order. 

9. Section 17 of the Crimes (Sentencing) Act 2005 provides in subs (2) that effectively where an offender is found guilty of an offence without convicting the offender the Court may make a non-conviction order.  Sub-section (3) of that provision provides that in deciding whether to make a non-conviction order the Court must consider certain matters that are set out in that provision including the offender’s character, antecedence, age, health and mental condition, the seriousness of the offence and any extenuating circumstances in which the offence was committed.  Sub-section (4) provides that the Court may also consider anything else the Court considers relevant. 

10. In my opinion, it is incumbent upon a Court when applying the provisions of s 17 to make it clear what matters the Court has taken into account in determining that a disposition under s 17 is appropriate. To simply hear submissions and then deliver judgment that the matter will be disposed of pursuant to s 17 of the Crimes (Sentencing) Act 2005 is apt to conceal error on the part of the sentencing officer. It must be made clear upon what basis the s 17 order is made.

11. For the reasons that I have given the appeal must be upheld.  In my opinion the appropriate disposition bearing in mind those factors which were raised in the course of the proceedings before the Magistrate is that the matter should be remitted to the Magistrates Court for the respondent to be resentenced according to law.

ORDERS

1. So the orders that I make are:

   a.That the orders made by the Magistrate on 28 May this year are set aside. 

   b.The matter is remitted to the ACT Magistrates Court for the respondent to be resentenced according to law.

   c.As this is an appeal under s 219B Magistrates Court Act 1930 (ACT), I make an order under s 219F(8) that the appellant pay the respondent’s costs of and incidental to the appeal.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:

Date:              15 November 2013

Counsel for the Appellant:  Ms M Jones
Solicitor for the Applicant:   ACT Director of Public Prosecutions
Counsel for the Respondent:   Mr J Sabharwal
Solicitor for the Respondent:   Tim Sharman
Date of Hearing:   30 October 2013
Date of Judgment:   30 October 2013