R v Donoghue
[2001] VSCA 113
•26 July 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 267 of 2000
| THE QUEEN |
| v. |
| TROY TIMOTHY DONOGHUE |
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JUDGES: | BROOKING, ORMISTON and PHILLIPS, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 July 2001 | |
DATE OF JUDGMENT: | 26 July 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 113 | |
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CRIMINAL LAW - Sentence - Driving offences - Breach of suspended sentence - Community-based order in Magistrates' Court - DPP appeal to County Court succeeding - Whether further appeal competent - Restoration of suspended sentence not erroneous.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Miss G. Cannon | Solicitor for Public Prosecutions |
| For the Applicant | Mr O.P.Holdenson,Q.C. | Geoffrey Tobin Pty. |
BROOKING, J.A.:
Phillips, J.A. will deliver the first judgment.
PHILLIPS, J.A.:
This is an application for leave to appeal against sentence imposed in the County Court on 20 September 2000 on appeal from a sentencing order made in the Magistrates' Court at Ringwood on 28 June 2000. There was however no transcript made of the proceedings in the County Court; what we have in that regard are the summary of proceedings and the summary of evidence prepared by the Crown for our use (both documents being dated 18 July 2001) and a helpful report by the County Court judge dated 16 October 2000, addressed to the presiding judge in the Court of Appeal. (A copy of the judge's report should, I think, be placed on our court file and remain there.) I should add that we have also now two affidavits in support of the present application for leave to appeal. The first is sworn by the applicant's solicitor (Geoffrey John Tobin) on 13 July 2001, dealing only with the proceedings in the Magistrates' Court on 28 June 2000. The second is sworn on 23 July 2001 by applicant's counsel in the County Court.
Some of the dates found in these various documents are not consistent, but I think that the relevant facts can be summarised as follows. On 13 August 1998, the applicant was dealt with in the Magistrates' Court at Ringwood on two charges: one of driving whilst disqualified and the other of driving with a blood alcohol level in excess of that which is prescribed. For these offences he was sentenced to an aggregate term of imprisonment of three months which was then wholly suspended for a period of two years. He was also disqualified from driving for a period of 12 months from 13 August 1998. Yet only 23 days later the applicant was apprehended offending again.
On 5 September 1998 the applicant drove away from a friend's house in Olinda after consuming, with his friend, about three quarters of a bottle of bourbon
mixed with Coca Cola. He drove to a public car park near a pool complex in Kilsyth. While driving into the car park he began having troubles with the car and came to the notice of police who were parked in a car nearby. The applicant pushed his vehicle into a parking spot and was then spoken to by the police. He was asked for his name and address and responded falsely. He then underwent a preliminary breath test and subsequently was taken to a nearby police station. There he gave his true name and address and underwent a breathalyser test. The result was a blood alcohol reading of 0.136 percent. When asked to explain his driving in this condition, he responded (it is said) with the one word: "Stiff". As for driving while disqualified, he said: "I needed to get home". As for providing a false name and address, he said: "I didn't want to get into trouble, it was stupid".
On 28 June 2000 the applicant appeared in the Magistrates' Court at Ringwood. He faced five charges under the Road Safety Act 1986. They were that (contrary to s.49(1)(f) of the Act) within three hours of driving he furnished a sample of breath indicating a blood alcohol content in excess of the prescribed concentration (which for him was nil); that (contrary to s.49(1)(b)) he drove a motor vehicle with a blood alcohol content of more than the prescribed concentration; that (contrary to s.30(1)) he drove a motor vehicle during a period of disqualification; that being the driver of a motor vehicle he gave a false name, and that he gave a false address too (both offences contrary to s.59(2) of the Act).
The second of these five charges, that is, that which was laid under s.49(1)(b), was withdrawn and need not be further mentioned. To the other four charges under the Act the applicant pleaded guilty. He admitted also that thereby he was in breach of the order of suspension that had been made on 13 August 1998.
The magistrate was provided with a certificate under s.84 of the Road Safety Act indicating that in five prior appearances in the Magistrates' Court between 21 April 1993 and 13 August 1998 the applicant had been found guilty or convicted of exceeding the prescribed concentration of alcohol on four separate occasions, of unlicensed driving on two occasions and of driving whilst disqualified on one occasion. The applicant had been found guilty of other offences against the Road Safety Act too.
After hearing a plea in mitigation during which a number of documents were tendered and supported by an assessment by the Office of Corrections that the applicant was suitable for such an order, the magistrate convicted the applicant and made a community-based order for 12 months with special conditions that he perform 250 hours of unpaid community work and attend for assessment, testing and treatment for alcohol abuse and that he attend for psychiatric or psychological counselling as directed by the Office of Corrections. In addition, the magistrate disqualified the applicant from driving for three years with effect from 15 September 1999. From those orders made on 28 June 2000, the Director of Public Prosecutions appealed to the County Court.
Certified extracts from the records of the Magistrates' Court confirm that the charge alleging an offence under s.49(1)(b) of the Road Safety Act was indeed withdrawn. Otherwise those extracts disclose that the orders, which I have just described as having been made, were made in respect of each and every one of the charges laid under the Road Safety Act and the breach of the earlier order of suspension. In contrast to that, the solicitor's affidavit asserts that no order was made in respect of the breach of the earlier suspended sentence, and the summary of proceedings with which we have been provided is similar, asserting that the magistrate's sentencing remarks "indicate that he made no order in respect of that offence". The judge's report suggests that his Honour proceeded upon the footing that the community-based order was in fact made - at least in part - with regard to the breach of the earlier suspended sentence; for the judge reports expressly that he doubted whether the magistrate had had the power to impose such an order in respect of a proven breach like that. But, his Honour proceeds, "as I was required to treat the matter as a rehearing, little time was taken up by this point".
On 20 September 2000, after hearing a plea in mitigation on behalf of the applicant, the judge sentenced the applicant as follows: for the offence under s.49(1)(f) of the Road Safety Act, to imprisonment for one month; on the charge of driving while disqualified contrary to s.30(1), to imprisonment for one month; for stating a false name and for stating a false address, to one day in gaol on each count. In respect of the breach of the earlier suspended sentence, acting under s.31(5) of the Sentencing Act 1991 his Honour required the applicant to serve the term which had been suspended, having formed the view that there were no "exceptional circumstances" which made that order unjust. However, in order to acknowledge "the efforts made by the applicant at rehabilitation" his Honour ordered that the penalties imposed for the offending by which the applicant had fallen in breach of the earlier sentence, should be served concurrently with the restored sentence - which was of three months. Thus, the appeal by the Director of Public Prosecutions succeeded and the orders made by the Magistrates' Court were displaced.
The applicant then sought leave to appeal to this Court by notice filed on 22 September 2000. In that notice the sole ground taken was that the sentences imposed in the County Court on 20 September 2000 were manifestly excessive, and on 6 October 2000 the applicant was granted bail.
So far as the ground of manifest excess is concerned, it is difficult to fathom this application for leave to appeal. There was no doubt in the County Court but that the applicant, by pleading guilty to the four charges under the Road Safety Act still being pursued, admitted the breach of the earlier suspended sentence - the sentence which, it may be recalled, had been imposed only 23 days before the offending on 5 September 1998. In those circumstances it was scarcely surprising that the learned judge restored the sentence earlier imposed and ordered the offender to serve it; so much is permitted by s.31(5) of the Sentencing Act, and, according to sub-s.(5A), such an order must be made unless the court considers that "it would be unjust to do so in view of any exceptional circumstances which have arisen since the order suspending the sentence was made". The judge considered this and found no such exceptional circumstances, and surely the only complaint now open was that in some way that bespoke error on his Honour's part.
It is of course not enough for an applicant in a case like this to seek to appeal on the ground that there were exceptional circumstances which had arisen since the order suspending the sentence was made: that is only one step if sub-s.(5A) is to be of assistance to an offender. That sub-section directs the court, in circumstances like these, to restore the suspended sentence and order the offender to serve it unless the court is "of the opinion that it would be unjust to do so in view of" the exceptional circumstances described.
In this case, the judge was of opinion that there were no exceptional circumstances of the kind described in sub-s.(5A) "which made it unjust to require the applicant to serve the term which had been suspended", and, despite the argument that was addressed to us this morning, I am altogether unpersuaded that, in so concluding, the judge fell into error. It was a matter for his Honour to decide whether he was or was not of the relevant opinion, and the argument put to us fell far short of establishing that the judge was for some reason or other constrained to the conclusion opposite to that which he reached. Of course the operation of sub-s.(5A) in any given case may be a matter upon which views might legitimately differ, but that is not enough to warrant our interfering as an appellate court; the judge must be shown to have reached a conclusion that was not open to him - and indeed Mr Holdenson, who appeared for the applicant this morning, accepted that that was the test. In my opinion the argument that was put to us does not justify our interfering on this appeal, and I would not interfere by reason of the ground of manifest excess.
That disposes of the only ground taken in the notice filed on 22 September 2000 by which the applicant sought leave to appeal. On 24 July last, only two days ago, notice was filed of the applicant's intention to apply to amend the grounds of appeal by adding the following:
"2. The learned sentencing judge erred in failing to give any, or sufficient, weight to the applicant's pleas of guilty in respect of each and all of the offences for which the applicant fell to be sentenced.
3. The learned sentencing judge erred in rejecting the evidence of the applicant's 'psychological make-up'.
4. The learned sentencing judge erred in failing to give any, or sufficient, weight to the applicant's rehabilitation.
5. The learned sentencing judge erred in failing to find the existence of 'any exceptional circumstances' for the purposes of s.31(5A) of the Sentencing Act 1991 (Vic.)
6. The learned sentencing judge erred in failing to take into account the 'double jeopardy principle'."
Mr Holdenson made, in very difficult circumstances, a very clear submission about the errors now ascribed to the sentencing judge in these amended grounds, but in the end I was not persuaded. Notwithstanding all that can be said in favour of the applicant by way of mitigation, I should have thought that this sentence, in all of the circumstances, tended to leniency, rather than excess. The judge did not fail to consider the applicant's pleas of guilty and his prospects for rehabilitation; and it cannot be shown that his Honour gave such considerations insufficient weight. We have, after all, only limited materials upon which to proceed, given that the sentencing remarks were not transcribed. I am certainly not persuaded that his Honour fell into error in the respects that I have just mentioned.
As for the evidence of the applicant's psychological make-up, this was put before the judge in the form of a report from Mr Ives, a clinical psychologist. According to the affidavit of 23 July 2001, that report was dated 27 March 2000 and it was considered by the sentencing judge. It is now said, by reference to his Honour's report, that the judge erred in rejecting the material. What his Honour says in his report in relation to the psychologist's report is this:
"Further submissions were made bearing on the psychological make-up of the applicant. I rejected this material as I considered it had little relevance to driving offences."
For the Crown, the point is made that this report from the County Court judge is scarcely his Honour's sentencing reasons, and plainly that is so. No doubt the sentencing remarks were more elaborate than this very brief though helpful report. The reasoning of the judge is not fully set out in the report, although, even as it stands, I see no error in what is said. The sentences which I have just quoted must be read as a whole, and his Honour did not reject the evidence which is in issue as of no relevance. Prima facie the psychological make-up of the applicant did have little relevance to driving offences, particularly, it should be recalled, as the applicant himself was running a business. What was of more significance, at least in the public interest, was that in driving as he did the applicant was in breach of the terms of the earlier suspended sentence and he had committed other driving offences in the past.
As for the alleged error in failing to find "exceptional circumstances" within s.31(5A), that was a matter for the judge in the first instance, and, as I have already said in dealing with the ground of manifest excess, I see no appealable error in the conclusion his Honour reached. As already indicated, Mr Holdenson accepted this morning that in view of the terms of s.31(5A) he had to demonstrate that it had not been open to the judge to find no exceptional circumstances, and, as I said earlier, I am far from persuaded of that.
As for the allegation that the judge erred in failing to take into account the "double jeopardy" principle, this was elaborated as a failure to have due regard to the fact that, in dealing with the matter at all, his Honour was dealing with it on a Crown appeal against sentence, attracting those special considerations to which reference has often been made in this Court and elsewhere. But I have said already that in my view the sentence was, if anything, lenient and I see no basis upon which to suggest that the sentencing judge fell into error by ignoring the very obvious fact that he was sentencing on a Crown appeal or ignoring those special conditions which such appeals attract. Again, what is to be found in the judge's report cannot be read as an exhaustive substitute for the judge's sentencing reasons. That no reference is made in that report to the fact that the proceeding in the County Court was an appeal by the Director is not to the point.
Again I emphasise that Mr Holdenson was making his submissions to us in difficult circumstances, granted the want of the usual material upon which this Court proceeds upon an appeal from the County Court or an application for leave to appeal. None the less, for the reasons I have given, I think that there would be no point in our granting leave to amend the grounds as sought. There is no more in any of those amended grounds than in the original ground of manifest excess, and accordingly I would dismiss this application for leave to appeal, assuming, that is, that the appeal is competent.
I add that last assumption because here the applicant was relying upon s.91(2) of the Magistrates' Court Act 1989, which confers a right of appeal to this Court if "under s.86(1) the County Court orders that the appellant be sentenced to a term of imprisonment" in a case where at first instance the Magistrates' Court had not "ordered that the appellant be imprisoned". Although no point was made of this by the Crown, there is perhaps a difficulty in this case in that s.91(2) speaks of "the appellant" and in the context of s.86(1) that might mean the appellant to the County Court, which in this case was the Director, not the offender. It is difficult to be clear about the meaning and application of this term "appellant" in s.91, because the drafting in and around s.91 is not altogether consistent. One need only refer to sub-ss.(1A) and (3A) of s.86 to observe the tension in the use of the term "appellant" in relation to a Director's appeal under s.84. It may well have been intended by Parliament, as indeed under the preceding legislation, that an appeal should lie in circumstances like the present where the appellant to this Court, having not been sentenced to imprisonment in the Magistrates' Court, has been sentenced to imprisonment on appeal to the County Court: see and compare Magistrates' Court
Act 1971, s.77. If so, the legislation should be made clearer, and I mention the matter, not in order to decide it, but in order that it may be referred for the urgent attention of Parliament.
For the reasons I have given, I would dismiss the application, whether or not an appeal be competent.
BROOKING, J.A.:
I agree.
ORMISTON, J.A.:
I am likewise not satisfied that it has been shown that the learned judge was in error here. I agree as to the uncertainty as to the operation of s.91. I reiterate what I said seven years ago, that it is appalling that there was no transcript of the hearing, and especially of the reasons given in the County Court.
BROOKING, J.A.:
The application is dismissed. No formal declaration is made - this is not part of our order - but it is convenient to record the fact that, bail having been granted by this Court on 6 October 2000, the applicant was liberated then on bail and so has not been in custody between 6 October 2000 and the present day. He will now remain in custody to resume the service of his sentence.
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