Munro v Hatch
[2011] NFSC 1
•27 October 2011
SUPREME COURT OF NORFOLK ISLAND
Munro v Hatch [2011] NFSC 1
Citation: Munro v Hatch [2011] NFSC 1 Appeal from: Application for leave to appeal: Court of Petty Sessions Parties: ROBERT WILLIAM MUNRO v CORRINA AROHA HATCH File number: SC 1 of 2011 Judge: LANDER J Date of judgment: 27 October 2011 Catchwords: CRIMINAL LAW – sentence – driving under the influence of alcohol – no conviction recorded – licence not disqualified – application for leave to appeal by prosecution from decision of Court of Petty Sessions – whether prosecutor can seek leave to appeal – whether application deemed to have been abandoned for late payment of security – whether in public interest to grant leave – application of principles in Sentencing Act 2007 (NI) – whether sentence manifestly inadequate – whether conviction should have been recorded – whether licence automatically disqualified – operation of s 46 of the Road Traffic Act 1982 (NI) – adequacy of sentencing remarks – serious nature of offence of drink driving – leave to appeal granted – appeal allowed – respondent resentenced Legislation: Court of Petty Sessions Act 1960 (NI)
Criminal Appeal Act 1907 (UK)
Dangerous Drugs Act 1927 (NI)
Interpretation Act 1979 (NI)
Offenders Probation Act 1913-1953 (SA)
Road Traffic Act 1961-1967 (SA)
Road Traffic Act 1982 (NI)
Sentencing Act 2007 (NI)
Supreme Court Act 1960 (NI)
Summary Offences Act 2005 (NI)Cases cited: Application by the Attorney-General under s 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305 cited
Attorney-General v Sillem (1864) 2 H&C 581 cited
Badari v Police [2003] SASC 149 cited
Briant v Bessell (1994) 74 A Crim R 204 cited
Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 cited
Cranssen v R (1936) 55 CLR 509 cited
Davern v Messel (1984) 155 CLR 21 cited
Everett v R (1994) 181 CLR 295 cited
House v R (1936) 55 CLR 499 referred to
Lacey v Attorney-General (Qld) (2011) 275 ALR 646 cited
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 cited
Maxwell v The Queen (1996) 184 CLR 501 cited
Meissner v The Queen (1995) 184 CLR 132 cited
O’Sullivan v Farrer (1989) 168 CLR 210 cited
Police v Cadd (1997) 69 SASR 150 cited
R v Clarke [1996] 2 VR 520 cited
R v Frantzis (1996) 66 SASR 558 cited
R v Osenkowski (1982) 30 SASR 212 cited
Re Stubs (1947) 47 SR(NSW) 329 cited
Shrubsole v Rodriguez (1978) 18 SASR 233 cited
Szewczuk v Police [2001] SASC 223 cited
Tome v Fingleton (1974) 8 SASR 507 cited
Victorian Stevedoring & General Contracting Co. Pty Ltd v Dignan (1931) 46 CLR 73 citedDate of hearing: 25 October 2011 Place: Norfolk Island Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 138 Counsel for the Applicant: Mr G Atkinson Solicitor for the Applicant: Legal Services Unit, Administration of Norfolk Island Counsel for the Respondent: Mr J Brown Solicitor for the Respondent: McIntyres Lawyers
IN THE SUPREME COURT OF NORFOLK ISLAND
GENERAL DIVISION
SC 1 of 2011
BETWEEN: ROBERT WILLIAM MUNRO
ApplicantAND: CORRINA AROHA HATCH
Respondent
JUDGE:
LANDER J
DATE OF ORDER:
27 OCTOBER 2011
WHERE MADE:
NORFOLK ISLAND
THE COURT DECLARES THAT:
1. The application for leave to appeal is valid.
THE COURT ORDERS THAT:
1. The applicant have leave to appeal.
2. The appeal be allowed.
3.The sentence imposed by the Court of Petty Sessions on 14 June 2011 be set aside.
4.In lieu thereof:
(a)The respondent be convicted.
(b)The respondent be disqualified from holding or obtaining a driver’s licence for a period of 3 months.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE SUPREME COURT OF NORFOLK ISLAND
GENERAL DIVISION
SC 1 of 2011
BETWEEN: ROBERT WILLIAM MUNRO
ApplicantAND: CORRINA AROHA HATCH
Respondent
JUDGE:
LANDER J
DATE OF ORDER:
27 OCTOBER 2011
WHERE MADE:
NORFOLK ISLAND
REASONS FOR JUDGMENT
This is an application by Mr Munro (the applicant) for leave to appeal against a sentence imposed by the Court of Petty Sessions of Norfolk Island (the sentencing Court). Mr Munro was the informant police officer in the sentencing Court.
On 14 June 2011 Ms Hatch (the respondent) pleaded guilty in the sentencing Court to two counts of possession of a dangerous drug contrary to s 12(2)(b) of the Dangerous Drugs Act 1927 (NI); one count of property damage contrary to s 49(1) of the Summary Offences Act 2005 (NI); and one count of driving a motor vehicle under the influence of intoxicating liquor contrary to s 32(1)(a)(i) of the Road Traffic Act 1982 (NI) (RTA) (known as the Traffic Act 2010 (NI) from 22 July 2011).
In respect of each of the four offences, after finding each offence proven, the sentencing Court released Ms Hatch without recording a conviction pursuant to s 11(1)(c) of the Sentencing Act 2007 (NI) (Sentencing Act) upon her entry into a recognisance in the sum of $1,000 to be of good behaviour for a period of two years and to make a payment of a $500 donation to St John’s Ambulance in respect of each of the two possession offences and a payment of $500 to the Sunshine Club in respect of each of the other two offences.
The applicant has sought leave to appeal against the order of the sentencing Court given on 14 June 2011 pursuant to s 230 of the Court of Petty Sessions Act 1960 (NI) (CPS Act). The application for leave is against “the order” made by the sentencing Court, and it is not clear whether that is also an application for leave to appeal against the sentencing Court’s failure to record a conviction.
The notice of appeal which accompanied the application for leave to appeal states in paragraph 1 of the order:
1.On 14 June 2011, the Court of Petty Sessions of Norfolk Island made the following order:
Section 32(1)(a)(i) of Road Traffic Act 1982 – Drive under the influence of alcohol
Order:
Under section 11(1)(c) enter into Recognisance on own surety of $1,000 to be of good behaviour for 2 years and to pay $500 to the sunshine Club within 3 months.Paragraph 1 does not refer to the sentencing Court’s decision or order to not record a conviction. However, ground 1 of the grounds of appeal in the notice of appeal complains that the sentencing Court imposed “a sentence which was manifestly too lenient in the circumstances of the case”, and the particulars to that ground complain of the sentencing Court’s failure to record a conviction.
I think the intent of the application is to seek leave to appeal against the failure of the sentencing Court to impose a conviction and the failure of the sentencing Court to impose an appropriate sentence. The application has certainly been argued on that basis.
The application for leave to appeal does not complain of the Court’s failure to record a conviction on the other three counts or the sentence imposed on those counts. This Court is therefore only concerned with the failure by the sentencing Court to record a conviction and the sentence imposed in respect to the offence of “drive under the influence of alcohol”.
The failure of the sentencing Court not to record a conviction does not of itself disentitle the applicant of the right to seek leave to appeal. Section 8(3)(b) of the Sentencing Act 2007 (NI) (the Sentencing Act) provides that a finding of guilt without the recording of a conviction has the same effect as if one has been recorded for the purpose of [an] appeal[s] against sentence.
There is a question as to whether the informant applicant can seek leave to appeal from the sentence imposed on Ms Hatch. I will deal with that in due course. There is also a question as to whether the application, if competent, has not been abandoned by reason of the applicant’s failure to comply with s 232 of the CPS Act and pay $200 to the Registrar of the Supreme Court by way of security of the costs of the application for leave to appeal within seven days after filing the application for leave to appeal. I will also address that matter in due course.
However, putting those issues to one side for the moment, the applicant’s counsel, Mr Atkinson, submitted that the sentence imposed was manifestly inadequate. He submitted that a conviction should have been recorded and that, in addition to the respondent being required to enter into a bond on the same terms and conditions as the recognisance she entered into, she should have been disqualified from holding or obtaining a driver’s licence for a period of three months.
Mr Atkinson submitted that the sentence imposed is so low that it has shocked the public conscience, and that the sentence requires this Court to clarify the sentencing principles to be applied to drink diving offences on Norfolk Island. In particular, Mr Atkinson submitted that the sentencing Court erred in not disqualifying Ms Hatch’s licence. He submitted that s 46 of the RTA required the sentencing Court to disqualify Ms Hatch’s licence as it prescribes a mandatory minimum period of licence disqualification for persons convicted of a major driving offence.
The respondent was represented before the sentencing Court and on the hearing of the appeal by Mr Brown, solicitor.
For the reasons that follow I am of the view that the applicant is entitled to seek leave to appeal against the sentence imposed on the respondent; that a declaration should be made declaring the application for leave be valid notwithstanding s 232 of the CPS Act; that leave should be granted; and that the appeal should be allowed.
Facts
The following facts are taken from the submissions of the lawyers for the parties in the Court of Petty Sessions. The facts seem to be uncontroverted.
At about 3.30am on Saturday, 28 May 2011 Norfolk Island police were called to attend an incident at a laneway at the rear of the Norfolk Island TAB and Kiernan Industry building on Taylors Road. Officers arrived at the laneway shortly afterwards. When they arrived they saw a Toyota sedan stopped in the laneway. Its headlights were on and the motor was running. The sedan was stopped behind two other cars.
As the police officers approached the vehicles they found a male person holding Ms Hatch down on the ground. The male person released Ms Hatch. She stood up, and, according to the officers present, she appeared agitated and unsteady on her feet. She also smelt strongly of alcohol. The officers asked Ms Hatch to step away from Toyota sedan. She declined and became argumentative. The officers restrained her, and placed her in the back of the police vehicle. Ms Hatch asked that they turn off the sedan, which was still running. The sedan was Ms Hatch’s vehicle.
The officers then spoke with the male person present. He informed them that he had previously been in a relationship with Ms Hatch, but that their relationship had broken down. He was now in a relationship with another woman, Ms C. He told the police that Ms Hatch had called him at around 2.30am that morning and asked to meet him. He agreed, and they had met at the laneway. It seems that Ms C was also present when they met. According to her former male friend, Ms Hatch became agitated. At some point she damaged the panel adjacent to the driver’s door on Ms C’s car. It seems that this caused the male person to restrain Ms Hatch while the police were called.
When the police arrived they inspected Ms Hatch’s car. They noticed that there was a large cannabis branch or head sitting in the passenger’s side foot well. After photographing and seizing the branch, they drove the sedan and Ms Hatch back to the police station.
Initially Ms Hatch was uncooperative. However, later that day she was charged and bailed. The police did not conduct a breath or blood test on Ms Hatch to ascertain her level of intoxication. Rather, they formed the view that Ms Hatch was under the influence of intoxicating liquor when she drove to meet her former male friend in the early hours of 28 May. She was also charged with damaging Ms C’s car and with possessing a dangerous drug.
Immediately after being charged and bailed the police conducted a consensual search of Ms Hatch’s car. Both Ms Hatch and her mother were present. During the search the police found a zip lock resealable bag containing a small quantity of cannabis and “zig zag cigarette papers” in the glove box of the car. They also found a zip lock resealable bag containing a broken capsule and white granule. Ms Hatch informed the officers conducting the search that the bag contained Ritalin, which is the commercial name for a drug that was defined as a dangerous drug in Part 2 of Schedule 5 to the Dangerous Drugs Act 1927 (NI). She told police that she did not have a prescription for it. She was then charged with an additional count of possessing a dangerous drug.
In pleading guilty to the four offences with which she was charged, Ms Hatch must be taken to have acknowledged all of the elements of each offence: Meissner v The Queen (1995) 184 CLR 132; Maxwell v The Queen (1996) 184 CLR 501; R v Frantzis (1996) 66 SASR 558 at 563.
However, it was put in sentencing submissions on her behalf that the cannabis head did not belong to her and that she did not put it in her car. It was also put that the quantities of cannabis and Ritalin found in her glove box were “miniscule.” Mr Brown submitted that the damage caused to Ms C’s car was minor, and that Ms Hatch had paid for the repairs to the car. In relation to the driving under the influence offence, it was submitted that the police could not have known the level of Ms Hatch’s blood/alcohol content.
More generally, it was put on behalf of Ms Hatch that the recording of a conviction for any of the four offences would inhibit her ability to travel to some countries. It was also submitted that the offences, including the driving under the influence offence, were at the lower range of objective seriousness, notwithstanding that they were serious offences.
It was submitted that she had pleaded guilty at the first available opportunity, and that she was genuinely sorry for her offending. She produced a number of positive character references. She had, it was put, a supportive mother and a supportive male friend. It was put that the offending was out of character and that the risk of her reoffending was low. At the time she pleaded guilty to the four offences the prosecutor advised the sentencing Court that Ms Hatch was a first offender and that she did not have any previous convictions.
Sentencing Court’s Reasons
The sentencing remarks of the Court are brief. The sentencing Court said that it took into account the respondent’s positive character references, her regret, and the fact that she had paid for the damage caused to Ms C’s car. The third factor to which the sentencing Court had regard was only relevant to the property damage offence. The sentencing Court gave no other reasons for the orders which it made. It did not say why it did not record a conviction for the offences it found proven upon her entry into a bond in the sum of $1,000 to be of good behaviour for two years.
As a condition of each order, the respondent was required to make a $500 donation to St John’s Ambulance (for each of the two possession offences) and the Sunshine Club (for the driving under the influence offence and for the property damage offence). The Court did not so order, but it appears that the intention was that the four separate bonds were to run concurrently.
Statutory Framework
The respondent pleaded guilty to an offence of driving under the influence of intoxicating liquor contrary to s 32(1) of the RTA. Section 32(1) states that:
Driving under the influence of drink or drugs
32. (1) A person who drives or attempts to drive a motor vehicle –
(a) whilst under the influence of –
(i) intoxicating liquor; or
(ii) a drug or psychotropic substance; or
(b)whose blood alcohol level is equal to or greater than a concentration of 0.08 grams of alcohol in 100 millilitres of blood, whether indicated by breath analysis or blood test,
is guilty of an offence.
Penalty:for a first conviction – 15 penalty units or 4 months imprisonment or both; or
for a second or subsequent conviction – 30 penalty units or 6 months imprisonment or both.
Note: 1. An offence under this section is a ‘serious offence’.
2. Part 8 provides for suspension and cancellation of licences.
Section 46 of the RTA prescribes a mandatory minimum period of licence disqualification for persons convicted of a major driving offence. The mandatory minimum period is three months. Section 46 states that:
Disqualification, etc, compulsory in certain cases
46.(1) Subject to subsection 46(2), where a person is convicted of a major driving offence, the Court which convicts him shall, in addition to any other penalty it imposes in respect of that offence –
(a)order him to be disqualified from holding or obtaining a learners licence or a drivers licence; and
(b)cancel the operation of any recognised licence he holds or may hold in Norfolk Island,
for such period, being not less than 3 months, as the Court thinks fit.
(2) Notwithstanding subsection 46(1), if the convicted person satisfies the Court that there are special circumstances why the provisions of that subsection should not apply to him, the Court may –
(a) substitute a period shorter than the 3 months; or
(b)not apply the provisions of that subsection in respect of that convicted person.
(3) A period of disqualification and any cancellation of operation of a recognised licence under subsection 46(1) shall start on the date of –
(a) the conviction; or
(b)where a period of disqualification or cancellation is already in effect – the end of that period,
whichever is the later.
A “major driving offence” is defined in s 3 of the RTA to include an offence against s 32(1).
Subject to s 46(2) the Court of Petty Sessions must on convicting a person of an offence against s 32 of the RTA disqualify an offender and cancel an offender’s driver’s licence for a period being not less than three months.
The Court also has power under s 131 of the Sentencing Act to cancel an offender’s driver’s licence for such time as the Court thinks fit where a person found guilty or convicted of an offence has used a motor vehicle to facilitate that offence. The sentencing Court did not rely on or refer to s 131, although in the light of s 46 of the RTA it would not have empowered the Court to disqualify the respondent’s driving licence in respect of the offence under s 32. However, s 131 would have been available to the sentencing Court in respect of the property damage offence, even when no conviction was recorded. The applicant however, as I have said, has only appealed against the sentence imposed in respect of the driving under the influence offence, so no more needs to be said about the orders that might be made under s 131.
In sentencing the respondent the Court did not refer to s 46 of the RTA. Instead it ordered that she be released without recording a conviction pursuant to s 11(1)(c) of the Sentencing Act. Section 11(1) provides as follows:
Release on bond without conviction
11.(1) A court which finds a person guilty of an offence may, without recording a conviction, order that the person be released on his or her giving such security as the court thinks fit that the person will –
(a)appear before the court if called on to do so during the period of the order, being a period not longer than 5 years as is specified in the order;
(b) be of good behaviour for the period of the order; and
(c) observe any conditions imposed by the court.
At this point it is necessary to consider the provisions relating to the application for leave to appeal.
Appeals
An appeal was not a process known to the common law. Unlike error, it is not a common law proceeding.
For a right of appeal a party had to be able to show that such a right had been given by statute: Attorney-General v Sillem (1864) 2 H&C 581 at 608-609; 159 ER 242 at 253; Victorian Stevedoring & General Contracting Co. Pty Ltd v Dignan (1931) 46 CLR 73 at 108; Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225.
In Lacey v Attorney-General (Qld) (2011) 275 ALR 646, the majority in the High Court said at [8]:
An appeal is not a common law remedy. It requires the creation by statute of an appellate jurisdiction and the powers necessary for its exercise. There was, at common law, no jurisdiction to entertain appeals by convicted persons or by the Crown against conviction or sentence.
(Footnote omitted)Because an appeal is a statutory remedy the ambit of the appeal must be governed by the authorising statute: Commissioner for Railways (NSW) v Cavanough at 225.
Appeals from the Court of Petty Sessions are dealt with in Part 8 of the CPS Act. Section 229(1) of the CPS Act gives a right of appeal to a party to a proceeding before the Court of Petty Sessions to appeal to the Supreme Court within 14 days after the date of judgment in the Court of Petty Sessions.
Section 229 relevantly provides:
Appeal from Court of Petty Sessions
229. (1) A party to a proceeding before the Court of Petty Sessions to which this section applies who is dissatisfied with a judgment of that Court may, within 14 days after the date of the judgment, appeal to the Supreme Court.
(2) The proceedings to which this section applies are—
(a)criminal proceedings where a person has been fined not less than $10 or sentenced to imprisonment for any term;
…
The respondent was not fined, nor was she sentenced to a term of imprisonment. Section 229 therefore has no application.
Mr Atkinson properly recognised that the applicant had no right of appeal under s 229, and relied on s 230 of the CPS Act, which deals with applications for leave to appeal.
Section 230 provides:
Leave to appeal
230.The Supreme Court may, on the application of a party to a proceeding before the Court of Petty Sessions who is dissatisfied with a judgment of the Court of Petty Sessions (including the prosecutor in a criminal proceeding where the judgment is that a charge be dismissed or that an accused person be acquitted), grant leave to appeal against the judgment in a case where –
(a) an appeal does not otherwise lie against the judgment; and
(b)the Supreme Court is of opinion that the granting of leave to appeal would be in the public interest.
The question is whether the applicant can rely on s 230 and seek leave to appeal. If the applicant cannot rely on s 230, he cannot ask this Court to review the decision and order the sentencing Court to record a conviction and disqualify the respondent’s licence.
Competency of Application for Leave to Appeal
Section 230 does not provide a right to a party to appeal. Instead it provides a right to seek leave to appeal.
A party to a proceeding is entitled to seek leave to appeal where an appeal does not otherwise lie against the impugned judgment. The only right of appeal from the Court of Petty Sessions to the Supreme Court is given by s 229. Section 229 applies to both criminal and civil proceedings. In the case of criminal proceedings, a party is only entitled to appeal “where a person has been fined not less than $10 or sentenced to imprisonment for any term”. I do not think that s 229 gives the applicant a right of appeal. Thus, s 230(a) is satisfied. It follows then that s 230 will be engaged if the applicant can bring the application within s 230(b).
However, there is a preliminary question which must be answered first, and that is whether s 230 authorises a prosecutor in a criminal proceeding to appeal against asentence imposed, notwithstanding that the section includes in parentheses the words “(including the prosecutor in a criminal proceeding where the judgment is that a charge be dismissed or that an accused person be acquitted)”.
Section 229 does not expressly authorise a prosecutor to appeal against either a conviction or a sentence. The common law recognises a fundamental principle that no person should be tried or punished twice for the same offence. The rule against double jeopardy has an indirect application in considering whether a statute authorises an appeal by the Crown or a prosecutor from a verdict of acquittal. Because the concept of double jeopardy is a fundamental principle of the common law it would be infringed if a statute authorised an appeal from an acquittal. Therefore a statute should not be construed as abrogating that principle unless that is the express intention of the statute.
In Davern v Messel (1984) 155 CLR 21 at 31, Gibbs J said:
However it is a principle of interpretation that no statute will be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed. The view has been taken that the common law rule against double jeopardy would be infringed by allowing an appeal from an acquittal, since the rule requires that an acquittal be treated as final. In Benson v. Northern Ireland Road Transport Board the House of Lords accepted as correct a statement by Palles C.B. in R. v. Tyrone County Justices that it is an elementary principle that “an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court”. It was accordingly held that the general words of a statute conferring a right to appeal against an order of a court of summary jurisdiction on “any party against whom an order is made for payment of any penal or other sum” did not suffice to give a complainant a right of appeal against an order of a court of summary jurisdiction which had dismissed the complaint and ordered the complainant to pay costs. The principle of the decision has been applied in Australia: see Platz v. Osborne; Keetley v. Bowie; and Beer v. Toms; Ex parte Beer.
(Footnotes omitted)As I have said, I do not think that s 229 authorises a prosecutor to appeal against the dismissal of a criminal proceeding or a verdict of acquittal, notwithstanding that the section refers to “a party to a proceeding”. I do not think that those words are wide enough to abrogate the common law principle. Section 229 does not authorise the prosecutor in a criminal proceeding to appeal against a dismissal or a verdict of acquittal in that proceeding even if the penalty imposed is a penalty of the kind contemplated by s 229(2)(a). Section 229 does not in its terms abrogate the common law principle of double jeopardy as it applies to sentence appeals. If I am right about that conclusion that does not mean that the Crown or a prosecutor could never appeal. It means that for the reasons that follow the Crown or prosecutor must always seek leave to appeal whatever the penalty imposed by the CPS Act.
When the legislatures in England first provided for a right of appeal in England in the Criminal Appeal Act 1907 (UK), the right of appeal or the right to seek leave to appeal was not conferred upon the Crown to appeal against sentence, although the Court of Appeal did have power to increase a sentence on a prisoner’s appeal. The Australian States followed the English Act: Lacey v Attorney-General (Qld) at [10].
I do not think s 229 authorises a prosecutor to appeal against a sentence, even a sentence of the kind mentioned in s 229(a). I think that construction is consistent with s 230. By including the words “(including the prosecutor in a criminal proceeding where the judgment is that a charge be dismissed or that an accused person be acquitted)” in s 230, the Assembly intended to make it clear that the prosecutor was entitled to seek leave to appeal in cases where the Court had dismissed a charge or acquitted a defendant.
It seems to me that the Assembly’s intention, manifested in the words and structure of the CPS Act, is that a right of appeal lies in those cases falling within the terms of s 229, and that in all other cases a party needs to seek leave to appeal to the Supreme Court. In my view the words in brackets provide additional clarification as to the right of a prosecutor to seek leave to appeal against a decision to dismiss a charge or when a person is acquitted.
Moreover, the words in parentheses should not be construed as limiting a prosecutor’s right to seek leave to appeal to a dismissal or a verdict. It should be construed so as to include a right to seek leave to appeal against a sentence. The right to seek leave to appeal is against the judgment not the dismissal or the acquittal. The Assembly intended by the use of the words to allow all parties to a proceeding in the Court of Petty Sessions to seek leave to appeal against the judgment, which includes the sentence. To avoid doubt the words in parentheses were added to allow a right to seek leave to appeal against a dismissal or an acquittal.
The better reading of s 230 is that it allows parties to a civil or criminal proceeding in the Court of Petty Sessions, other than a proceeding to which s 229 would apply, to seek leave to appeal against a decision of the Court, including a decision dismissing a charge or acquitting an accused person, and that right extends to a prosecutor seeking to appeal against a sentence imposed by the Court of Petty Sessions. Because s 229 does not permit the Crown or a prosecutor to appeal as of right in cases where the Court of Petty Sessions has imposed a penalty of the kind mentioned in the section, the Crown or prosecutor must seek leave to appeal under s 230. It would have helped if the Assembly had also included in the brackets that a prosecutor had the right to seek leave to appeal against a sentence imposed by the Court of Petty Sessions. But the fact that the words “including the prosecutor in a criminal proceeding where the judgment is that a charge be dismissed or that an accused person be acquitted” have been included does not limit the broad meaning of s 230.
Accordingly, I am of the view that the applicant is entitled to seek leave to appeal against the decision of the Court to discharge the respondent without recording a conviction and the sentence imposed. However, whether leave should be granted is a different matter.
Before discussing that question, I should deal with the respondent’s contention that the applicant’s application has been deemed to be abandoned because of a failure to comply with s 232 of the CPS Act.
Section 232 of the CPS Act
Section 232 of the CPS Act provides:
Security for appeal
232. (1) Within 7 days after filing a notice of appeal to, or an application for leave to appeal to, the Supreme Court, the appellant or the applicant shall give security for the costs of the appeal or for the costs of the application for leave to appeal and, if the application is granted, for the appeal, as the case may be.
(2) Security shall be given in the sum of $200 and shall be by deposit of money with the Registrar or by such other method as the Registrar approves.
(3) If security is not given in accordance with this section, the appeal, or the application for leave to appeal, as the case may be, shall be deemed to have been abandoned.
It was not argued that s 232 did not apply to a prosecutor and, in my opinion, no argument could have been advanced to that effect because Part 8 of the CPS Act treats all parties alike, including parties to a civil proceeding.
It was also not contended by Mr Atkinson that the applicant had complied with s 232. The security was paid into Court, but not until 19 July 2011, which was outside the time provided for in s 232. Rather the applicant contended that the applicant’s non-observance of s 232 did not lead to a determination that the application for leave to appeal had been abandoned. In the alternative it was put that if the applicant should have complied with s 232, and the applicant’s failure to do so would lead to the abandonment of the application for leave, this Court had power to extend the time within which the applicant had to comply with s 232.
Section 232 of the CPS Act mandates the applicant on an application for leave to appeal to give security for the costs of the application “and, if the application is granted, for the appeal, as a case may be”. The security which is to be given is in the sum of $200 and shall be by way of deposit with the Registrar or such other method as the Registrar approves: s 232(2).
The section is not entirely clear insofar as it applies to applications for leave to appeal. It is not clear whether security must be given both at the time of the application for leave to appeal and at the time leave is granted, but I think the better construction of the section is that security only needs to be given once on an application for leave to appeal, and that no further security needs to be given after the application is granted because of the opening words of s 232(1), which provides for the security to be given within seven days after filing a notice of appeal or an application for leave to appeal, but does not speak of a time after the grant of leave.
Importantly for the purpose of this application, s 232(3) deems the application for leave to appeal to have been abandoned if security is not given in accordance with the section.
The respondent contended that this application should be dismissed as incompetent as it has been deemed to be abandoned by s 232(3).
The word “deemed” can be used to effect two different senses. It may be used to create a statutory fiction on the one hand, or used in the sense of “judged” or “concluded” on the other.
In Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203, Gleeson CJ said at 207:
It commonly happens that, because legislation contains a deeming provision, there may arise a question of construction which turns, not so much upon the meaning of the word “deemed”, as upon a view concerning the statutory purpose for which it has been used. Such a question may turn, for example, upon whether the legislature is intending to create a statutory fiction or whether, on the other hand, it is merely making a provision for the removal of doubt which might otherwise exist…
In this case s 232(3) creates the statutory fiction in that it deems an event to have occurred as a result of a failure to comply with s 232(1). The event which it deems to have occurred is the abandonment by the applicant for leave to appeal of the application.
Where “deemed” is used in the sense of a statutory fiction it may be appropriate as a matter of construction to construe that statutory fiction as only operating as a rebuttable presumption, which means that a certain state of affairs will be presumed unless and until the party against whom the statutory fiction is raised can rebut that presumption.
In Macquarie Bank Ltd v Fociri Pty Ltd, Gleeson CJ said at 207-208:
There is another issue that sometimes arises where Parliament has enacted a deeming provision. In some cases a court may conclude, as a matter of construction, that the consequence which is deemed to follow is only in the nature of a rebuttable presumption; a certain state of affairs will be presumed unless and until the contrary is proved: see, eg, Consolidated School District of St Leon Village No 1425 v Ronceray (1960) 23 DLR (2d) 32; Crédit foncier Franco-Canadien v Bennet (1963) 43 WWR 545. Where such a conclusion is reached, however, it does not necessarily follow that it works both ways. In the present case, for example, it would be one thing to conclude that a defendant in civil proceedings, or an accused person, could call evidence to rebut a statutory presumption created by s 553(2) (if that be all that it is); it would not necessarily follow, even if that were accepted, that a plaintiff, or a prosecutor, could ignore s 553(2). In this case it is not necessary to decide whether a defendant or an accused can go behind the deeming provision. The issue we have to decide is whether a plaintiff can ignore it. Those two issues may have some similarities, but they are not identical.
In this case it was argued that the application for leave to appeal is deemed to have been abandoned unless the applicant can establish that the applicant wishes to proceed. Mr Atkinson submitted that the applicant demonstrated this by paying the sum of $200 into Court on 19 July 2011.
In my opinion that argument must be rejected because I do not think that s 232(3) raises a rebuttable presumption. It is not intended, in my opinion, that a party who does not comply with s 232(1) could by way of evidence establish that the party wished to proceed with the application notwithstanding the failure to comply with the subsection. The obligation to pay the $200 by way of security is imposed for the protection of the respondent to the application for leave to appeal so that the respondent’s costs are secured to that extent if the appeal or application for leave to appeal is dismissed.
It would be a strange result if an applicant could prove that the applicant always intended to continue with the application for leave to appeal, and thereby escape the consequences of non-compliance with s 232(1), leaving the respondent to the application unprotected as to the security which s 232(1) envisages.
The applicant also relied upon s 29 of the Supreme Court Act 1960 (NI) which provides:
(1)Proceedings in the Supreme Court shall not be invalidated by any formal defect or by any irregularity, unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.
(2)The Court or a Judge may make an order declaring that any proceeding is valid notwithstanding any defect or irregularity.
Section 29 is only engaged if the failure to comply with s 232(1) is a formal defect or irregularity and an application for leave to appeal is a proceeding of the kind referred to in s 29(1) of the Supreme Court Act. I think an application for leave to appeal is a proceeding for the purpose of s 29 of the Supreme Court Act.
In my opinion, a failure to comply with s 232(1) creates both a defect and an irregularity. The defect must be understood as an absence of an act or thing which impacts upon the validity of a proceeding. The irregularity is the failure by the prosecutor in this case to comply with s 232(1). That construction is supported by a reference to subsection (2), which allows the Court to make a declaration that a proceeding is valid. Section 29(2) gives some meaning to what is meant by a formal defect or any irregularity contained in s 29(1). The formal defect or irregularity must be of a kind which would make the proceeding invalid, because the relief which can be granted under s 29(2) is a declaration that a proceeding is valid.
Section 29 is available to validate the defect or irregularity occasioned by the failure to comply with s 232(1) unless substantial injustice has been caused by the defect or irregularity, and that injustice cannot be remedied by an order of the Court. There is no evidence that the respondent has suffered any injustice by reason of the defect or irregularity or that it is necessary to make any order to remedy any injustice.
In those circumstances, I think it is appropriate to make an order under s 29(2) declaring the proceeding to be valid notwithstanding the failure by the applicant to comply with s 232(1).
In the Public Interest
A party seeking leave to appeal under s 230 must satisfy the Court that an appeal does not otherwise lie against the judgment against which the party seeks leave to appeal, and must satisfy the Court that the granting of leave to appeal would be in the public interest. As I have already said, in this case an appeal does not otherwise lie against the Court’s judgment, so s 230(a) does not preclude the applicant making the application.
Section 230 of the CPS Act prescribes the circumstances in which the Supreme Court is able to grant leave to appeal against a judgment of the Court of Petty Sessions. The Supreme Court must be of the opinion that the granting of leave to appeal is “in the public interest”: s 230(b). In O’Sullivan v Farrer (1989) 168 CLR 210 Mason CJ, Brennan, Dawson and Gaudron JJ stated at 216 that:
Indeed, the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable…given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission [(1947) 74 CLR 492] per Dixon J at p 505.
There is nothing in the CPS Act itself which would indicate the considerations to which the Court should have regard when determining whether the grant of leave to appeal would or would not be in the public interest. It would not be in the public interest to review all sentences passed in the Court of Petty Sessions.
However, it is in the public interest that sentences imposed by the Court of Petty Sessions conform to the Sentencing Act and sentencing principles. The sentences of the Court of Petty Sessions should be consistent and consistently fair. However, not all departures from the Act or those principles mean that it is necessarily in the public interest to correct a particular sentence. Section 230 does not give a prosecutor a right to seek leave to appeal to have this Court substitute its opinion for the opinion of the Court of Petty Sessions. Whether a grant of leave to appeal will be in the public interest must turn upon whether it may be demonstrated that the Court has acted upon a wrong principle or has had regard to irrelevant matters or failed to have regard to relevant matters, such that the sentencing Court’s sentencing discretion has miscarried.
This Court’s role in appeals and on applications for leave to appeal is to correct error, so unless error of the kind to which I have referred can be demonstrated, this Court has no role to play. This is so whether the application for leave is made by the prosecutor or the offender.
In House v R (1936) 55 CLR 499 at 504-5, Dixon, Evatt and McTiernan JJ said:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Similarly, in Cranssen v R (1936) 55 CLR 509, Dixon, Evatt and McTiernan JJ stated at 519 that it:
…remains true that the appeal [was] from a discretionary act of the court responsible for the sentence. The jurisdiction to revise such a discretion must be exercised in accordance with recognized principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised.
It follows that a party must demonstrate that the sentencing Court has made an error of the kind referred to in House v R before it could be said to be in the public interest to grant leave to appeal.
However, different principles apply to the Crown or a prosecutor than to an offender seeking leave to appeal against sentence. There is even less reason for this Court to entertain an application for leave to appeal against sentence where the application is brought by the prosecutor. There is a particular need for restraint on prosecution appeals: R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; Everett v R (1994) 181 CLR 295; R v Clarke [1996] 2 VR 520 at 522 per Charles JA; Police v Cadd (1997) 69 SASR 150 at 156-159 per Doyle CJ.
In Everett v R the High Court addressed the manner in which the jurisdiction of courts of appeal to grant leave to a prosecutor to appeal against sentence should be exercised. The majority (Brennan, Deane, Dawson and Gaudron JJ) stated at 299-300:
Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognise that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”.
(Footnotes omitted)There is public interest in this Court maintaining consistent sentencing standards and ensuring that inferior courts impose adequate punishments for offences. In Everett v R at 306 McHugh J said:
The approach of a court to a jurisdiction that specifically authorises a Crown appeal against sentence must necessarily be different from the approach that this Court takes on an application for special leave to appeal against an order setting aside a conviction. The jurisdiction to hear a Crown appeal against sentence is conferred on a Court of Criminal Appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.
Only in “rare and exceptional cases” or when there is a need to ensure consistent sentencing standards will it be in the public interest to grant leave to appeal to the prosecution to appeal against a sentence imposed by the Court of Petty Sessions. It is not enough that the court of appeal would have imposed a different sentence. Leave will only be granted to establish a point of principle or to correct a substantial wrong. That said, a sentence imposed may reveal such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle. Similarly, leave may be granted in order to correct a sentence that is so disproportionate to the seriousness of the crime that it shocks the public conscience.
Those principles which are fundamental to the criminal justice system will circumscribe the circumstances where this Court will entertain a prosecution appeal and where a court will interfere with a sentence when determining whether it is “in the public interest” to grant leave to appeal. If the sentence imposed is manifestly inadequate or so low as to shock the public conscience then a grant of leave to appeal will follow, notwithstanding the restraint that is normally exercised on prosecution appeals against sentence.
In this case Mr Atkinson submitted that the sentence imposed was manifestly inadequate. He submitted that it was so low that it would shock the public conscience and impact upon the administration of justice. He argued that a conviction should have been recorded, and that in discharging the respondent without recording a conviction the Court did not have regard to or comply with s 8 of the Sentencing Act. He also submitted that the sentencing Court erred in not disqualifying Ms Hatch’s licence pursuant to s 46 of the RTA.
Evidence was adduced by Mr Atkinson without objection to establish two matters. First, that the Registrar of Motor Vehicles had been approached by several community members expressing concern about the adequacy of the penalty and, in particular, the failure to suspend the respondent’s licence. Secondly, a table was produced showing the penalties imposed for like offences including driving under the influence and driving with a blood alcohol content in excess of the prescribed amount. Only one other person in the last three years out of the 30 persons dealt with by the Court has not been convicted and had their licence suspended, and in that case that person had as a condition of the bond imposed a condition that he not drive a motor vehicle for three months except in his employment.
Mr Atkinson contended that in order to determine whether leave to appeal should be granted it is first necessary to consider whether the Court needed to have regard to s 8 of the Sentencing Act before applying the provisions of s 11 of the Sentencing Act.
Part 3 of the Sentencing Act deals with sentencing and it is divided into Divisions and Subdivisons. The Divisions address general provisions, dismissals, discharges and bonds, community service orders and custodial orders (which include suspended orders, home detention orders and periodic detention, and imprisonment). The purpose of Part 3 is to bring together all of the sentences which may be imposed upon an offender when the Court has found that an offence has been proven.
Part 4 of the Act deals with orders that may be made in addition to sentence, including restitution and compensation orders, and cancellation of an offender’s driver’s licence.
Division 1 of Part 3 deals with general provisions, and s 7 addresses the sentencing orders which may be made when a person is found guilty of an offence.
Section 7 provides:
Sentencing and other orders
7. Where a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and this Part, make one or more of the following sentencing orders:
(a)without recording a conviction, order the dismissal of the charge for the offence;
(b)without recording a conviction, order the release of the offender;
(c)record a conviction and order the discharge of the offender;
(d)record a conviction and order the release of the offender;
(e)with or without recording a conviction, order the offender to pay a fine;
(f)with or without recording a conviction, make a community service order in respect of the offender;
(g)record a conviction and order that the offender serve a term of imprisonment that is suspended by it wholly or partly;
(h)record a conviction and instead of ordering that the offender serve a term of imprisonment make a periodic detention order under subdivision 3 of division 5 of Part 3;
(j)record a conviction and order that the offender serve a term of imprisonment that is suspended on the offender entering into a home detention order;
(k)record a conviction and order that the offender serve a term of imprisonment;
(l)impose any sentence or make any order authorised by this or any other Act.
Paragraphs (a) and (b) of s 7 allow the Court to make sentencing orders without recording a conviction: in the case of paragraph (a) an order dismissing the charge for the offence; and in the case of paragraph (b) an order releasing the offender. Paragraphs (e) and (f) of s 7 also allow the Court to make sentencing orders without recording a conviction, including in the case of paragraph (e) the offender paying a fine, and in the case of paragraph (f) making a community service order in respect of the offender.
However, in deciding whether or not to record a conviction, the Court is required to have regard to the circumstances set out in s 8 of the Sentencing Act. Section 8 states that:
Conviction or non-conviction
8.(1) In deciding whether or not to record a conviction, a court shall have regard to the circumstances of the case including –
(a)the character, antecedents, age, health or mental condition of the offender;
(b) the extent, if any, to which the offence is of a trivial nature; or
(c)the extent, if any, to which the offence was committed under extenuating circumstances.
(2) Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction shall not be taken to be a conviction for any purpose.
(3) A finding of guilt without the recording of a conviction –
(a)does not prevent a court from making any other order that it is authorised to make in consequence of the finding by this or any other Act; and
(b) has the same effect as if one had been recorded for the purpose of –
(i) appeals against sentence;
(ii) proceedings for variation or breach of sentence;
(iii) proceedings against the offender for a subsequent offence; or
(iv)subsequent proceedings against the offender for the same offence.
Section 8 requires the Court to consider the matters in subsection (1) before deciding whether or not to record a conviction. Subsections (2) and (3) provide for the consequences if there has been a finding of guilt without the recording of a conviction.
Section 8, in my opinion, governs the manner in which the Court should proceed in deciding whether or not to record a conviction for the purpose of making one of the sentencing orders referred to in s 7.
Subdivision 1 on the other hand, in which s 11 is contained, deals with dismissals, discharges and bonds. In a number of ways it duplicates the general provisions in s 7 and s 8. However, in other ways it extends the powers which the Court may exercise. For example, s 7 does not empower the Court to proceed, without recording a conviction, to release the offender on his or her giving such security as the Court thinks fit. It is only s 11 which provides that power.
In exercising that power under s 11, it seems to me that the Court should have regard to the provisions in s 9 which govern the orders made under Subdivision 1 of this Division. Section 9 provides:
Purpose of orders under this Division –
9. An order may be made under this Division –
(a)to provide for the rehabilitation of an offender by allowing the sentence to be served in the community;
(b)to take account of the trivial, technical or minor nature of the offence committed;
(c)to allow for circumstances in which it is inappropriate to record a conviction;
(d)to allow for circumstances in which it is inappropriate to inflict any punishment other than a nominal punishment; or
(e)to allow for the existence of other extenuating or exceptional circumstances that justify the court showing mercy to an offender.
Section 11 does not require the Court to have regard to the matters in s 8. I do not think there is such an obligation. Because of the provisions of s 9, the power to be exercised in s 11 is not governed by s 8. Section 8 governs the exercise of the power in s 7. The power which may be exercised in s 11 is governed by the purposes provided for in s 9. The matters contained in s 8 and s 9 are similar but not the same.
Mr Atkinson’s submission in that regard must be rejected. The sentencing Court did not have to have explicit regard to the matters contained in s 8. However, the Court should have had regard to the matters contained in s 9.
There is nothing in the sentencing Court’s sentencing remarks which would suggest that the sentencing Court had any regard to the purposes in s 9 of the Sentencing Act before exercising the power in s 11(1)(c), which might indicate error on the part of the sentencing Court’s approach.
The sentencing Court did have regard to the character references which were submitted to the Court and to the respondent’s contrition, which it described as “regret”, and to the fact that the respondent had already paid for the damage caused to Ms C’s car. However, it does not appear as though it had regard to any other matters in exercising the power under s 11.
It cannot be said that the offences to which the respondent pleaded guilty and which the Court found proven were trivial or that it would be inappropriate to inflict any punishment other than a nominal punishment, or that it would be inappropriate to record a conviction, or that s 9(a) had any application.
The sentencing Court did not identify any extenuating or other exceptional circumstances that would have justified the sentencing Court showing mercy to the offender.
In my opinion, the sentencing Court erred in applying s 11 without first considering the purposes contained in s 9.
There is another matter that should be addressed. The sentencing Court required the respondent as a condition of the bond to make a donation of $500 to the Sunshine Club. Similar conditions were imposed in respect of the other offences. I think that conditions of that kind should not be imposed. I realise that Norfolk Island is a small community and some persons may think conditions of this kind will benefit the community. However, a sentencing Court should not impose on an offender an obligation to make a donation. It is a contradiction in terms. A donation is by its terms a gift. Sentencing courts should not require an offender to make a “gift” which if not made will mean that the offender is in breach of his or her bond. Moreover, the Court cannot know whether the condition has been observed. The charity or organisation which receives the benefit of the order does not know of the condition. It has no duty to report to the Court (if it does know of the condition) that the condition has not been met. Conditions of this kind do not further the interests of the administration of justice.
Consideration of Appeal
The sentencing remarks of the Court are very brief. It would have helped if they were more detailed. Before announcing the sentence in respect of each offence, the sentencing Court simply said that “Corrina [Ms Hatch], we have considered your references and note your regret and the fact that you have already paid for damages…”.
It was contended by Mr Brown that Ms Hatch’s culpability was at the lower end of the scale. There was no accident. The police did not actually see her drive a motor vehicle under the influence; she confessed to driving the motor vehicle earlier in the evening.
Ms Hatch was largely co-operative with police after being taken into custody, and she pleaded guilty at the earliest possible opportunity. She has a number of positive character references that indicate that the offending was out of character and that she is not likely to reoffend. She had suffered a breakdown of her relationship with her former male friend. She is relatively young, being 24. She also has a supportive mother and male friend. She has expressed regret over the incident. I proceed as the sentencing Court did on the basis that she was a first offender. The factors personal to the respondent tend to support a lenient sentence.
The offence of driving a motor vehicle under the influence of intoxicating liquor is a serious offence. Drink driving is a social evil that can have serious consequences for other road users. It often results in accidents where people are killed or seriously injured. It must be discouraged. In Application by the Attorney-General under s 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305, Howie J (with whom Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreed) said at 308 that:
…“drink driving” amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle.
As such, general deterrence is particularly important in sentencing for these types of offences: Briant v Bessell (1994) 74 A Crim R 204. The penalties that the Assembly has set out in s 32 of the RTA for a first and subsequent conviction for this offence, which include imprisonment, indicate that the Assembly views this sort of conduct as very serious.
In most cases the recording of a conviction and the imposition of the mandatory three month licence disqualification will be the minimum sentence for this type of offending. In some cases a longer period of disqualification and the imposition of a fine, or even imprisonment, will be appropriate, particularly where the offender is a repeat offender and his or her prospects of rehabilitation are slight.
As the authorities I have set out make plain, I have to be satisfied that the decision to discharge Ms Hatch without recording a conviction and without disqualification represents a sentence that is so manifestly inadequate or inconsistent with other sentences imposed that it reveals an error of principle calling for the intervention of this Court. Otherwise I need to be satisfied that the sentencing Court has failed to apply correct sentencing principles.
Because I think the sentencing Court fell into error by failing to have regard to the provisions of s 9, it follows that I am of the opinion that the sentencing Court did not proceed in accordance with the Sentencing Act. I also think the Court failed to have regard or sufficient regard to Ms Hatch’s culpability. The only matters to which the sentencing Court had regard were matters subjective to the respondent. The sentencing Court failed to have any regard to the objective facts. As a result, the sentencing Court fell into error and imposed a sentence which was manifestly inadequate. For those reasons, the appeal must be allowed and Ms Hatch resentenced.
In resentencing Ms Hatch I must first consider whether it would be appropriate to record a conviction. I do not think that the matters subjective to the respondent are such that a conviction should not have been entered. The respondent was under the influence of alcohol whilst she drove her motor vehicle. It is not to the point that she was not subjected to a breath analysis. She has admitted by her plea that she drove a vehicle contrary to the provisions of s 32. The offence was not trivial, technical or minor. It is not inappropriate to inflict a punishment other than a nominal punishment. The extenuating or exceptional circumstances to which the respondent has pointed do not, in my opinion, require the Court or indeed move the Court to not record a conviction.
Section 32(1) provides that the penalty for a first conviction is 15 penalty units or four months’ imprisonment or both. In this case, given that Ms Hatch is a first offender who has pleaded guilty and was largely cooperative with police, imprisonment would not be appropriate. A penalty unit is $100: see s 12A of the Interpretation Act 1979 (NI). Therefore, the maximum pecuniary penalty I could impose would be $1,500. However, the respondent has already paid a $500 “donation” to the Sunshine Club, which has no responsibility to return that amount.
If I were considering this matter for the first time I would have been inclined to impose a penalty of $750. However, in light of the amount paid by Ms Hatch to the Sunshine Club, I will not impose any pecuniary penalty in resentencing Ms Hatch.
Having recorded a conviction the provisions of s 46 of the RTA operate in their terms and the Court must order the respondent to be disqualified from holding or obtaining a driver’s licence for a period of at least three months, unless the respondent has satisfied the Court that special circumstances exist why s 46(1) should not apply. As I have already indicated, the respondent has not made out any special circumstances.
Mr Atkinson contended that even if I were disposed to agree with the sentencing Court that a conviction should not be imposed, I should still make an order under s 46 of the RTA disqualifying the respondent from holding a driver’s licence for the period mentioned in that subsection: s 46(1). I will deal with that submission even though I am of the opinion that a conviction should be recorded.
I do not think there can be any doubt that the provisions of the Sentencing Act can apply to offences under the RTA. There is nothing in the RTA or indeed in the Sentencing Act itself which would suggest that the Sentencing Act has no application to offences under the RTA. Indeed I think s 4 of the Sentencing Act establishes that the Sentencing Act applies to offences under the RTA because it says that the Sentencing Act applies to all courts other than the Court of Petty Sessions for hearing matters under s 246A of the CPS Act. I think there is no doubt that this section of the Sentencing Act is meant to apply to all sentences, whether imposed under the Sentencing Act itself or under a special Act.
However, in my view s 46 does not require the sentencing Court to disqualify the respondent’s licence unless the sentencing Court first convicted the respondent. Section 46 refers to a person “convicted” of a major driving offence. Ms Hatch was not convicted by the sentencing Court of driving under the influence of intoxicating liquor. Rather, the Court ordered that she be discharged without a conviction being recorded.
In Cobiac v Liddy (1969) 119 CLR 257 the High Court had to consider a legislative scheme not dissimilar to the one under consideration. Specifically, it had to consider whether the discretionary powers conferred by s 4(1) of the Offenders Probation Act 1913-1953 (SA) could be exercised in a case in which a person was charged with an offence under s 47(1) of the Road Traffic Act 1961-1967 (SA). Section 4(1) of the Offenders Probation Act stated that:
Where any person is charged before a court of summary jurisdiction with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to –
(a)the character, antecedents, age, health or mental condition of the person charged, or
(b)the trivial nature of the offence, or
(c)the extenuating circumstances under which the offence was committed,
it is expedient to exercise any of the powers conferred by this subsection, the court may –
I. without convicting the person charged dismiss the information or complaint.
Section 47(1) of the Road Traffic Act stated that:
A person shall not –
(a) drive a vehicle; or
(b) …
while he is so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle.
The penalties for a breach of s 47(1) were for a first offence a fine or imprisonment for not more than three months and, in either case, disqualification from holding and obtaining a driver’s licence for such period as the Court thought fit but in no case for less than three months. Section 47(4) provided that:
Notwithstanding any other Act the minimum amount of any fine and the minimum period of imprisonment or disqualification prescribed by this section shall not be reduced or mitigated in any way except as follows: -
In the case of a first offence, the court, if it is satisfied by evidence given on oath that the offence is trifling, may order disqualification for a period less than three months but not less than fourteen days.
In concluding the magistrate was entitled to utilise the power contained in s 4(1) of the Offenders Probation Act notwithstanding that the defendant had been charged with an offence under s 47(1)(a), Barwick CJ, Kitto and Owen JJ stated at 263 that “[i]t appears to us to be clear that the penalty provisions of s 47(1) cannot operate unless there has first been a conviction of the person charged.” They continued at 264:
…we have no doubt that the provisions of s 47(4) of the Road Traffic Act only come into operation where there has been a conviction of the offence charged. The sub-section deals only with penalties and there can be no imposition of a penalty unless and until there has first been a conviction. We are of the opinion therefore that Bray CJ and Bright J rightly considered that s 4(1) of the Offenders Probation Act can, in an appropriate case, be applied where a person is charged with contravening s 47(1) of the Road Traffic Act.
See also Re Stubs (1947) 47 SR(NSW) 329.
The wording of s 46 demands the same approach. Section 46 refers to a person who “is convicted of a major driving offence.” By proceeding under s 11 of the Sentencing Act, the Court did not convict Ms Hatch, and so s 46 was not engaged. This approach is consistent with s 8(2) of the Sentencing Act, which states that except as otherwise provided, a finding of guilt without the recording of a conviction “shall not be taken to be a conviction for any purpose.” It is also consistent with s 46(3) of the RTA, which refers to the period of disqualification commencing on the date of conviction. I reject Mr Atkinson’s submission in that regard. However, as I have said, in my opinion a conviction should be recorded, and s 46 must be allowed to operate.
Finally, it is necessary to say something about the sentencing remarks of the Court. Mr Atkinson made a general complaint that the Court’s reasons in sentencing Ms Hatch were inadequate. His complaint does not appear to have been that the inadequacy of the Court’s reasons was an error affecting the sentence imposed.
In Badari v Police [2003] SASC 149 at [62], I said as a Judge of the Supreme Court of South Australia:
Sentencing remarks are constructed and delivered primarily for the purpose of telling the convicted person why the particular sentence has been imposed. The content of the remarks will depend upon a number of factors: the seriousness of the offence, whether the offender admitted the offence; whether he or she is contrite; whether he or she has co-operated with any relevant authority; the basis of fact upon which the sentence rests i.e. the circumstances of the offence; whether any other offences are to be taken into account; the personal circumstances of the offender including his or her antecedents; any questions of general or personal deterrence; the effect upon the community of the particular offence or class of offence; the prospects of the offender’s rehabilitation; any special matters which require mentioning; the sentence; and the reasons why that sentence has been imposed.
In Szewczuk v Police [2001] SASC 223, I said at [32]:
The reasons perform at least two functions. First they explain to the person upon whom the sentence is being imposed the reasons why the particular sentence has been selected in the exercise of the sentencing discretion. Secondly the reasons allow those advising the offender and, if necessary, an appeal court to review the sentencing discretion. For both those reasons the sentencing remarks must be transparent so that the reasoning process which underlies the exercise of the sentencing discretion can be understood and reviewed.
There would be some circumstances where an absence of the sentencing remarks may of itself give rise to an appealable error, although I note that s 146(1) of the Sentencing Act states that the failure of a court to give reasons does not invalidate any sentence imposed by it.
Whether reasons are adequate depends on the nature of the decision made. As I have already noted, the reasons of the Court were brief. It would have helped if they were more detailed. Mr Atkinson complains that the Court did not indicate why it did not impose a mandatory period of disqualification under s 46 of the RTA. The short answer to this submission is that, from the transcript of the sentencing submissions, it was not asked to consider s 46. Indeed, it does not appear as though s 46 was drawn to the Court’s attention, although I note that Part 8 of the RTA is referred to in the Note in s 32.
All in all it would be better if, when sentencing offenders in the future, the Court of Petty Sessions set out the particular matters or circumstances which it has relied upon for the purpose of arriving at the sentence imposed: Tome v Fingleton (1974) 8 SASR 507; Shrubsole v Rodriguez (1978) 18 SASR 233 at 235. An offender is entitled to know why the Court has reached a particular sentence. The general public are also entitled to know why it is that the Court has arrived at a particular sentence. If the public generally are not able to discern why a particular sentence has been imposed, it is liable to shake the public’s confidence in the administration of justice.
That does not mean that the sentencing Court needs to give elaborate reasons. However, it should mention the relevant objective facts which will indicate the offender’s culpability; the relevant subjective matters to which the Court needs to have regard; and short reasons as to why the particular sentence is imposed.
Conclusion
The applicant is entitled pursuant to s 230 of the CPS Act to seek leave to appeal against the decision of the Court of Petty Sessions to discharge Ms Hatch without recording a conviction.
In my view the application for leave to appeal raised matters of some importance to the operation of drink driving laws and the sentencing provisions in Norfolk Island. These were matters of principle that warranted the consideration of this Court. Accordingly, I grant leave to Mr Munro to appeal against the decision of the Court of Petty Sessions.
For the reasons already given, the application for leave to appeal is valid. The applicant should be granted leave to appeal, and the appeal should be allowed. The order of the sentencing Court should be set aside. In lieu thereof the respondent must be convicted pursuant to s 46 of the RTA there will be an order disqualifying the respondent from holding a driver’s licence for a period of three months from today.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 27 October 2011
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