Paul Lawrence Reynolds v Brendan James McTernan

[2012] ACTMC 3

PAUL LAWRENCE REYNOLDS v BRENDAN JAMES MCTERNAN
[2012] ACTMC 3 (2 August 2012)

CRIMINAL LAW – PRACTICE AND PROCEDURE – repeat offender provisions – Road Transport (Alcohol and Drugs) Act (ACT) 1977 s 4F – whether information should be amended to reflect circumstances of aggravation – Magistrates Court Act 1930 (ACT) s 28

Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4F, 19(1)
Road Transport (Offences) Regulation 2005 (ACT) Schedule 1 Part 1. 3
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
Magistrates Court Act 1930 (ACT) s 28

Warry v Hill (14 March 2003, Magistrate Burns, unreported)
O’Hara v Harrington [1962] Tas SR 165
Rivera v Maher (1992) 17 MVR 370
Schulter v Trenerry (1997) 117 NTR 6
R v Hietanen (1989) 51 SASR 510
Warby v R (2007) 171 A Crim R575
R v Lee (1994) 76 A Crim R271
Meissner v The Queen (1995) 184 CLR 132

O’Connor v Bini (1908) VLR 567

No.  CC 3953 of 2012
No.  CC 3954 of 2012

Magistrate:      Mossop
Magistrates Court of the ACT

Date:               2 August 2012

IN THE MAGISTRATES COURT OF THE         )
  )          No.  CC 3953 of 2012
  No. CC 3394 of 2012
AUSTRALIAN CAPITAL TERRITORY               )

BETWEEN:PAUL LAWRENCE REYNOLDS

Informant

AND:BRENDAN JAMES MCTERNAN

Defendant

ORDER

Magistrate:  Mossop
Date:  2 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

(a)The information in charge 12/3954 be amended to delete the word “first” and insert the word “repeat”.

History of Proceedings

1. The defendant has pleaded guilty to two separate charges of contravening section (1) of the Road Transport (Alcohol and Drugs) Act 1977 “the Act”. I have accepted the pleas of guilty and found both of the offences proved.
2. The circumstances of the two contraventions of section 19(1) are out of the ordinary in that the offences occurred on the same day only one hour apart. The defendant was detected at 2am on 27 April 2012 whilst driving and a breath test showed that at 2.32am he had 0.129g of alcohol per 210 litres of breath. At 3am police observed the defendant driving the same vehicle and, unsurprisingly, stopped the vehicle and required the defendant to undergo a breath test. At 3.26am a breath test showed that the defendant had 0.109 g of alcohol per 210 litres of breath. At the time of his second apprehension, police observed that the defendant had the drug and alcohol pamphlet that had been provided a short time earlier to him by police hanging from the rear pocket of his jeans. The informations laid against the defendant in relation to the contraventions of section 19(1) were in the same terms, namely:

“That he, a first offender, special driver, in the Australian Capital Territory on 27 April 2012, having been the driver of a motor vehicle on a road, did have, within the relevant period, the prescribed concentration of alcohol in his breath being level three.”

3. On 8 June 2012, the defendant entered pleas of guilty to the two charges.  At that point Ms Jamieson-Williams, who appeared for the prosecution, sought leave to amend the second charge 2012/3954 so as to delete the word “first” and replace it with the word “repeat”.  Ms Cory who appeared for the defendant opposed that amendment.  At that stage the opposition to the amendment was on the basis that it would be unfair to make the amendment to the charge following the plea of guilty.  I reserved my decision upon whether or not the amendment should be permitted and directed that short written submissions on the point should be filed.  Because I had also directed that a pre-sentence report be prepared this approach did not cause any additional delay in the finalisation of the proceedings.

Submissions of the defendant
Submissions of the prosecution
Consideration
Section 4F Road Transport (Alcohol and Drugs) Act

4. The written submissions filed by the defendant appeared to no longer oppose any amendment to the charge on the ground of unfairness.  Rather the submission was that the defendant would only become a repeat offender once he had been convicted or found guilty of charge 2012/3953.  The submissions accepted that once the defendant was convicted or found guilty of charge 2012/3953, he would be a repeat offender for the purposes of charge 2012/3954 even if the conviction or finding occurred concurrently.  The defendant concedes that is the effect of section 4F(2)(b) of the Act, a section which I will set out in full below.
5.   The defendant submitted that it was not necessary to specify in either of the charges whether the defendant is a first or repeat offender but rather the distinction is one which must be made at the time the court imposes penalties for the two offences.

6. The prosecution submission referred to section 4F(2)(b) of the Act and submitted that once a plea is entered and accepted in relation to both offences the defendant is a repeat offender in relation to the second in time offence by virtue of being found guilty of the first offence.  The submission also referred to the necessity to particularise the charge in a way that reflects the defendant as a repeat offender according to the Road Transport (Offences) Regulation 2005, Schedule 1, Part 1. 3.

7. Section 4F of the Road Transport (Alcohol and Drugs) Act provides, relevantly:

4 F Meaning of first offender and repeat offender

(1) A person who is convicted or found guilty of a disqualifying offence is a first offender in relation to the offence if the person is not a repeat offender in relation to the offence.
(2) A person who is convicted or found guilty of a disqualifying offence is a repeat offender in relation to the offence if-

…

(b) the person is convicted or found guilty of one or more relevant offences concurrently with being convicted or found guilty of the disqualifying offence, and one or more of the relevant offences were committed before the disqualifying offence.

8. The term “disqualifying offence” is defined in the Dictionary as including an offence against s 19.  A “relevant offence” is defined in section 4F as including, relevantly, a disqualifying offence.  As a consequence, the effect of paragraph (b) is that if a person is convicted or found guilty of two offences against s 19 of the Act on the same occasion, then if the acts giving rise to one of those offences occurred before the acts giving rise to the other, then, in relation to the charge arising out of the later acts, the defendant is a repeat offender.
9.   Applied to the circumstances of the present case, section 4F(2)(b) means that in relation to the conduct of the defendant at 3am which led to him being tested and found to have 0.109g of alcohol per 210 litres of breath and gave rise to charge 2012/3954, he is considered, as a consequence of a finding of guilty in relation to charge 2012/3953, to be a repeat offender for the purposes of the Act.

Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010

10. Section 4F(2)(b) was enacted by the legislature to ensure that, in circumstances such as the present, a person would be a repeat offender notwithstanding that at the time of committing the second offence the person had not been convicted or punished for the first offence and notwithstanding that the conviction or finding of guilt in relation to the first in time offence had not occurred prior to the second in time offence being dealt with.  The explanatory statement for the bill which inserted section 4F, makes it clear that the provision was explicitly intended to overcome the effect of the decision of this court in Warry v Hill (unreported, Magistrate Burns, 14 March 2003).  In that decision His Honour applied the principle of statutory interpretation applicable in relation to statutory provisions that provide for increases in penalties for subsequent offences.  The principle is to the effect that a provision imposing such an increased penalty will be interpreted as being limited in its application to offences committed after being convicted and receiving punishment for the first breach of the provision.   That principle has a long pedigree: O’Connor v Bini (1908) VLR 567, O’Hara v Harrington [1962] Tas SR 165, Rivera v Maher (1992) 17 MVR 370, Schulter v Trenerry (1997) 117 NTR 6. As a consequence, His Honour held that it was not open to sentence an offender who had breached a provision of the Road Transport (Safety and Traffic Management) Act 1999 on the basis that he was a repeat offender in circumstances where the offences were all committed on the same day and the earlier in time offences were being dealt with at the same time as the later offences.
11.   The Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010 provides:

“The inclusion of the words ‘whether or not the person had been convicted or found guilty of the relevant offence’ in section 4F(2)(a) and ‘concurrently with being convicted or found guilty’ in section 4F(2)(b) are intended expressly to exclude a common law principle of statutory construction for repeat offender provisions.  The essence of the principle is that a law which imposes a higher penalty on repeat offenders should be interpreted as applying only to offences committed after being convicted the first time.”

12. It then continues to discuss the decision in Warry v Hill and the decisions which were referred to in that case in some detail.  The statement articulates a clear policy position that the rule which formed the basis for the decision in Warry v Hill should be departed from.

Amendment of the Information

13. The difference in the position of the parties was really whether or not it was necessary to amend the charge or whether it was simply a matter of sentencing the defendant on the basis that he was a repeat offender.
14. Informations alleging contraventions of s 19 are routinely drafted to specify whether it is alleged the defendant is a first offender or a repeat offender. That is not because the status of the defendant as a first offender or repeat offender is an element of the offence. Section 19(1) makes no reference to the status of the defendant as a first or repeat offender. The section does not create distinct offences depending upon whether or not the offender is a first or repeat offender. It is only s 26 which specifies, in part, the penalties applicable in relation to s 19 offences that distinguishes between first offenders and repeat offenders.
15.   However, where a statute fixes different penalties for an offence by reference to the existence or non-existence of circumstances of aggravation “there is a rule of practice that the circumstances which would expose the accused to the higher penalties must be pleaded in the charge and, if issue is joined, must be adjudicated upon by the jury or other tribunal of fact”: see R v Hietanen (1989) 51 SASR 510 at 514 (King CJ). This situation must be distinguished from the ordinary case in which facts relevant to the exercise of the sentencing discretion within the prescribed range of penalties are decided by the sentencing judge and need not be pleaded. Further it is also distinct from cases where the existence of circumstances of aggravation converts a lesser offence into a greater offence in which case the question is not merely one of a rule of practice but rather a more fundamental question about which offence has been charged: see Warby v R (2007) 171 A Crim R 575 at [14]-[20].
16.   In relation to the rule of practice, the position is that if the prosecuting authorities intend to submit to the sentencing judge, following conviction, that the maximum penalty that is available is different as a consequence of the circumstances of aggravation then the circumstances are a matter that should be specifically alleged: R v Lee (1994) 76 A Crim R271 at 289 (Gleeson CJ with whom Powell JA and Smart J agreed): Warby v R (2007) 171 A Crim R575 at [16] (Hislop J with whom McClellan CJ at CL and Smart AJ agreed).
17.   However, a failure to comply with the rule of practice does not necessarily mean that a sentence imposed upon the basis that an increased penalty was available must be quashed.  The question is whether a miscarriage of justice has occurred and only if that question is answered in the affirmative should the sentence be set aside: see R v Lee (1994) 76 A Crim R271 at 289, Warbyv R (2007) 171 A Crim R575 at [16]. I note that in Warby one of the reasons why Hislop J would have, had it been necessary, found that there was a miscarriage of justice was because the transcript of the sentencing hearing indicated that at the time of the plea it was probable that the applicant believed he was pleading to an offence which had a lower maximum penalty than that which was available if the circumstances of aggravation were found to exist.
18.   In the present case, in my view, the legislation requires the court to treat the defendant as a repeat offender in relation to charge 2012/3954.  The defendant appears in his submissions to have accepted that fact.  The defendant has positively submitted that it is not necessary to amend the charge but simply a matter to be dealt with in sentencing.  In my view, having regard to the fact that the charge specifically incorporates the allegation that the defendant is a first offender, it is appropriate in accordance with the rule of practice that I have referred to above to permit the amendment of the charge, so that it accords with the basis for sentencing required by the legislation. 
19. In my view, it is open to do so under s 28 of the Magistrates Court Act 1930 (ACT) because the prosecution has identified that there is a variance, within the meaning of the section, between the terms of the charge and the evidence upon which I am asked to sentence the defendant. I note the evidence that an earlier offence was committed on the same evening is in the statement of facts which has been admitted, or alternatively, the evidence of the bare admission of the earlier offence.
20.   Recognising that a plea of guilty may be extended “for all manner of reasons”: see Meissner v The Queen (1995) 184 CLR 132 at 185 per Dawson J, it is appropriate, in my view having allowed the amendment to the charge to confirm that the defendant adheres to his plea of guilty.
21.   Finally, I should address the prosecution’s argument that the amendment is required to particularise the charge in a manner that accords with the Road Transport (Offences) Regulation 2005 Schedule 1 Part 1. 3. Although I may be missing something having regard to the brevity of the submissions, I cannot see how the short descriptions of the offences in the schedule which are made relevant by s 17 of the Regulation and s 17 of the Road Transport (General) Act are relevant to the present question.

Conclusion

22. Therefore I will amend the information in charge 12/3954 to delete the word “first” and insert the word “repeat”.

Orders

(a) The information in charge 12/3954 be amended to delete the word “first” and insert the word “repeat”.

I certify that the preceding twenty two paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Magistrate Mossop.

Associate:
Date: 5 September 2012

Counsel for the Plaintiff:  Ms A Jamieson-Williams (8 June 2012), Ms K Twigg (2 August 2012)

Solicitor for the prosecution  Director of Public Prosecutions (ACT)
Counsel for the Defendant:  Ms H Cory
Solicitor for the respondent:  Legal Aid Office (ACT)
Date of hearing:  8 June, 2 August 2012
Date of judgment:  2 August 2012