Robens v Sproule
[2021] ACTMC 8
•28 May 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Robens v Sproule |
Citation: | [2021] ACTMC 8 |
Hearing Date(s): | 28 May 2021 |
DecisionDate: | 28 May 2021 |
Before: | Magistrate Theakston |
Decision: | 1. The defendant is remanded to appear on 15 February 2023 at 9:30 am part-heard before Magistrate Theakston for sentence. 2. A Court Duty Report is ordered. 3. Bail is to continue. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive while disqualified – effects of mandatory disqualifications – mandatory considerations for a non-conviction order – proportionality |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 17, 31, 33 Road Transport (Driver Licencing) Act 1999 (ACT), ss 32(1), 32(5), 32(7) Road Transport (General) Act 1999 (ACT), s 69 |
Cases Cited: | Application by the Attorney General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 Cobiac v Liddy [1969] HCA 26; [1969] 119 CLR 257 Naoumidis v Robens [2018] ACTSC 365 R v Elphick [2021] ACTSC 9 R v Jacky [2019] ACTSC 123 R v Pelecky (No 2) [2020] ACTSC 370 Roseby v Harman [2014] ACTSC 125 Smith v Stivala [2018] ACTSC 309; 341 FLR 359 Watson v Stiles [2021] ACTMC 2 |
Parties: | Paul Robens (Informant) Hayden Sproule (Defendant) |
Representation: | Counsel K Sheridan (Informant) Self-represented (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Self-represented (Defendant) | |
File Number(s): | CC 5372 of 2021 |
MAGISTRATE THEAKSTON:
Introduction
From time to time a defendant comes before the court where the application of the Territory’s mandatory sentencing provisions would produce a disproportionate and counter-productive outcome. This is such a matter.
The defendant pleaded guilty to the offence of driving while disqualified. A conviction in this matter would trigger an automatic disqualification for a further two years, and that term would be cumulative on his current disqualifications.
Circumstances
During the afternoon of 19 May 2021, police observed the defendant driving his utility on the Monaro Highway. He was stopped and admitted to being disqualified from driving. There was nothing aggravating about the offending. There was nothing remarkable about the way he was driving, there were no passengers in the car and there was no associated consequence of his driving, such as a risk to the community or an accident. He was arrested, later charged and, after a couple of hours, released on bail from police custody to attend court on a later date.
On 28 May 2021 and at the defendant’s first appearance before the court, he pleaded guilty to the charge and the matter proceeded to sentence.
The defendant is 25 years of age and shares equal care of two preschool aged children with his ex-partner. He is self employed as a mobile mechanic and, while being disqualified from driving, employs a driver for the purpose of collecting parts, travelling to customers’ locations and driving customers’ cars.
At court, the defendant spontaneously conceded his driving history was poor and his previous offending was due to his previous poor attitude in that regard. His history includes five prior offences for driving while disqualified. He understood his current disqualifications will end in February 2023.
The defendant explained his most recent conviction in NSW involved a sentence of imprisonment, which was later converted on appeal to an Intensive Correction Order. The defendant spent over a month in custody at the Goulburn Correctional Centre before being released on that order to serve his sentence in the community. He described that experience as eye opening. He was strongly persuaded to not reoffend, and his resolve remains in that regard. He explained this new attitude contrasted with the way he had viewed the risk of offending in the past. I accepted that evidence.
On the day in question the defendant was scheduled to attend upon his customers to work on their vehicles. Unfortunately, the driver did not attend as arranged. The defendant described being left with the choice of not working that day or driving while disqualified. He was worried about needing to provide for his family and made the regrettable decision to drive. He was pulled over on the way to a customer’s premises after attending Fyshwick to collect parts.
The disqualification
The ACT road transport legislation provides for a range of mandatory disqualifications following convictions, and sometimes without conviction. The various provisions are scattered across the road transport legislation, do not always operate consistently, interact awkwardly with general sentencing provisions and can be difficult to understand and apply. However, for the offence of driving while disqualified, as a repeat offender, contrary to s 32(1) of the Road Transport (Driver Licencing) Act 1999 the resultant disqualification is relatively simple. Section 32(5) provides that the disqualification is for a period of two years. While that disqualification operates as a matter of law, following the recording of a conviction and without an order of the court, the same provision empowers the Court to, by order, make the disqualification for a longer period.
In Smith v Stivala [2018] ACTSC 309 at [36], Burns J held that s 69 of the Road Transport (General) Act 1999 was not a source of judicial power to order a disqualification to run concurrently with an existing disqualification. The source for that power was to be found at s 31 of the Crimes (Sentencing) Act 2005, and in any event that power only applied to disqualifications imposed by order of the court and not to those operating as a matter of law. That decision remains binding on this Court, notwithstanding a reservation about that ruling expressed by Refshauge AJ in R v Pelecky (No 2) [2020] ACTSC 370 at [64].
Accordingly, in the absence of a court order to make the disqualification for a longer period, the automatic disqualification would commence at the end of any existing disqualifications or suspensions: s 32(7) of the Road Transport (Driver Licencing) Act.
Out of completeness I note that it could be argued that the disqualification could by order be made marginally longer and then ordered to run concurrently, at least in part, with an existing disqualification. However, in R v Elphick [2021] ACTSC 9 at [161], Murrell CJ ruled that such an approach would be inappropriate given the legislative intent to impose mandatory cumulative disqualification periods.
Non conviction order
Section 17 of the Crimes (Sentencing) Act 2005 allows a court to find a defendant guilty, but not record a conviction. In this case, the disposal of the offence without a conviction would mean an automatic disqualification would not follow. When deciding to exercise this discretion, the Court must take into account the three mandatory considerations provided by the provision, as well as anything else the Court considers relevant. The mandatory considerations are:
(a) the offender’s character, antecedence, age, health and mental condition;
(b) the seriousness of the offence; and
(c) any extenuating circumstances in which the offence was committed.
In Watson v Stiles [2021] ACTMC 2, Walker CM identified a number of principles that apply to the exercise of this discretion. With respect I adopt the first five of those principles. They are as follows (footnotes deleted):
(a) Firstly, this disposition may apply to any type of offence.
(b) For the purposes of argument, it may be accepted that in order to constitute extenuating circumstances pursuant to s 17(3)(c), the relevant circumstance must bear a direct relationship to the offence that was committed.
(c) Whilst this section does not require the court to be satisfied that there are exceptional or special circumstances which are demonstrated before the court can exercise a s 17 discretion, it is the case that the disposition of a matter without the recording of a conviction must be considered itself exceptional because the expectation on the proof of criminal offending should ordinarily be the recording of a conviction.
(d) In an appropriate case, the court may consider whether there is likely to be a disproportionate effect upon an offender by the imposition of a conviction. This is something which the court may consider relevant pursuant to s 17(4) so that if the imposition of a conviction is likely to have a particular impact upon an individual offender, the court may take that into account in determining whether to exercise its discretion not to impose a conviction.
(e) Section 17 confers a discretion. It does not exclude the making of a non-conviction in any particular circumstances but equally it does not provide an entitlement to such an order in any particular circumstances.
Her Honour also made reference to the decision of Cobiac v Liddy [1969] HCA 26; [1969] 119 CLR 257 at 276, where Windeyer J, in one of the majority decisions, noted that the equivalent NSW provision required the Court to have regard to the considerations provided by the provision and went on to opine that such should be a genuine application of those considerations:
I read that as meaning more than merely noticing that one or more of them exists. It’s, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous or idiosyncratic consideration.
Her Honour also suggested that a relevant consideration for the s 17 discretion was a rule of proportionality, where proportionality was assessed having regard only to the objective seriousness of the offending. I have some reservations about confining that assessment in that way. I do not see the reasoning adopted by Refshauge J in Roseby v Harman [2014] ACTSC 125 at [55] or by Burns J in Naoumidis v Robens [2018] ACTSC 365 requiring such a narrow approach. Further, proportionality is a relative concept requiring the comparison between two things. Here it must be a comparison between the nature of the offending compared with the effect of the penalty. The nature of the offending must be informed by a range of factors including circumstances that may reduce the culpability of the offending, and the effect of the penalty must be informed by how the penalty would impact upon the individual offender. Support for that approach is found in three of the five objects of the Crimes (Sentencing) Act 2005, namely:
(a) to provide a range of sentencing options;
(b) to maximise the opportunity for imposing sentences that are constructively adapted to individual offenders; and
(c) to promote flexibility in sentencing.
Further, it could be argued that the consideration of proportionality, in the above circumstances, is little more than an application of the purposes of sentencing and relevant considerations provided by ss 7 and 33 of the Act. This is consistent with the observations of Howie J in Application by the Attorney General (No 3 of 2002) [2004] 61 NSWLR 305 at [132], namely:
But where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases. The section must operate in the context of the general principle that the penalty imposed for any offence should reflect the objective seriousness of the offence committed. To recognise this fact is not to impose an undue restriction upon the section or to change the criteria for its operation on an offence by offence basis. Such an approach would clearly be erroneous. It is simply to apply normal sentencing principles to the offence under consideration.
I also adopt, with respect, Her Honour’s acceptance of the principle denouncing judicial activism described by Howie J also in Application by the Attorney General (No 3 of 2002) at [132], namely:
… the discretion … cannot … be broadened simply because a court does not agree with Parliament’s view of the seriousness of a particular offence or believes that in general the penalties imposed under the scheme of the legislation are unduly harsh or unpalatable.
Consideration
On accepting the explanation provided by the defendant, it could not be said that the offending in this matter was contumacious. That is notwithstanding his history of committing the same offence several times in the past. He received a persuasive sanction in NSW and subsequently put in place arrangements to avoid re-offending. Unfortunately, the arrangements failed on the day in question, and in the extenuating circumstances where he needed to work to support his family he made the poor decision to drive. Further, there was nothing aggravating about the offending. It could not be described as a serious example of the offending. He committed the offence, and nothing more.
The defendant is a young man, self-employed in the motor vehicle industry, with care responsibilities for a young family. His ability to provide for and care for his family are impeded by his inability to lawfully drive. While driving has been described as a privilege, as opposed to a right, it is nevertheless a necessity for most people in Canberra. Without an ability to drive, it is much more difficult to effectively engage in remunerative work, care for children and otherwise participate productively in the community.
The recording of a conviction would trigger a disqualification for a further two years, making the aggregate disqualification end in early 2025. That result would be crushing and probably counter-productive. It may cause the defendant to give up on attempting to work within the system. In that way it may fail to provide specific deterrence and act as a disincentive in relation to not offending.
In the above circumstances I decided to apply a circuit breaker to this runaway feedback loop involving disqualifications, driving and further disqualifications. I adjourned the sentencing to a date after the expiration of the current disqualifications with a strong recommendation to the defendant that I would look favourably upon him should he return to Court with a valid driver licence, employment and no further offending. I did so without making any promises about the outcome but noted that were he to meet those expectations a non-conviction order may be an appropriate outcome.
Finally and by way of observation only, I note that mandatory sentencing removes judicial discretion and runs the risk of producing perverse outcomes. Mandatory cumulative licence disqualifications, particularly where the safety of the public is not of concern, can produce outcomes which promote, rather than deter, re-offending; and such outcomes can be devastating to the individual and ultimately unhelpful to the community. By way of example, they can disempower parents and lead to unfortunate second order effects on children, including reducing their opportunities and impeding their development. Accordingly and with respect, I adopt Burns J’s comments in R v Jacky [2019] ACTSC 123 at [7] and [10] :
… In many respects it is very draconian in the way in which these provisions work. …
In my opinion the way in which the legislation works can work injustice because with regard to minimum mandatory disqualifications, those which are imposed by statute, it appears to me that the Court has no power to order that they be served concurrently. It is, in one sense, bad enough that there is a mandatory disqualification which removes any discretion from the Court to consider the particular circumstances of the case or the particular offender but the potential for injustice is heightened by the statutory scheme which requires, in effect, that all such disqualifications be accumulated.
Order
The court ordered:
1. The defendant is remanded to appear on 15 February 2023 at 9:30 am part-heard before Magistrate Theakston for sentence.
2. A Court Duty Report is ordered.
3. Bail is to continue.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for adjournment of his Honour Magistrate Theakston Associate: Neerja Thirunavukarasu Date: 11 June 2021 |
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