Rutzou v Campbell

[2024] ACTSC 217

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Rutzou v Campbell

Citation: 

[2024] ACTSC 217

Hearing Date: 

19 June 2024

Decision Date: 

10 July 2024

Before:

Baker J

Decision: 

(1)  The appeal is dismissed.

Catchwords: 

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence imposed by the Magistrates Court – alleged manifest excess and specific error – condition imposed in good behaviour order prohibiting the appellant from driving except for limited purposes – prosecutor conceded the condition was an order made contrary to law – scope of s 13(4)(g) Crimes (Sentencing) Act 2005 (ACT) considered – concession not accepted - condition made by the Magistrate not contrary to law or manifestly excessive – appeal dismissed.

Legislation Cited: 

Crimes Act 1914 (Cth), ss 20(1), 20AB

Crimes (Sentencing) Act 2005 (ACT), ss 13, 17(2), 18

Crimes (Sentence Administration) Act 2005 (ACT), ss 85, 86

Magistrates Court Act 1930 (ACT), s 218(1)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19(1)

Road Transport (Driver Licensing) Act1999 (ACT), s 32(1)

Road Transport (Driver Licensing) Regulation 2000 (ACT), s 45

Cases Cited: 

Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1

Commonwealth Director of Public Prosecutions v Evans [2022] FCAFC 182; 294 FCR 512

Hawker v R [2020] ACTCA 40

Hili v R; Jones v R [2010] HCA 45; 242 CLR 520

Miller v Tighe [2017] ACTSC 185; 322 FLR 299

Porter v The Queen [2024] ACTCA 9

R v Pham [2015] HCA 39; 256 CLR 550

Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305; 147 A Crim R 546

Parties: 

Sophie Rajander Rutzou ( Appellant)

Donald Campbell ( Respondent)

Representation: 

Counsel

A Byrnes ( Appellant)

K McCann ( Respondent)

Solicitors

Andrew Byrnes Law Group

ACT Director of Public Prosecutions

File Number:

SCA 17 of 2024

Decision Under Appeal: 

Court/Tribunal:           ACT Magistrates Court

Before:   Magistrate Burt

Date of Decision:       21 February 2024

Case Title:                 The Police v Sophie Rutzou

Court File Number:     CAN 9632 of 2023

BAKER J:      

Introduction

1․The appellant, Sophie Rutzou, pleaded guilty in the Magistrates Court to a charge of driving with a prescribed concentration of alcohol in breath as a first offender, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RT(AD) Act).

2․On 21 February 2024, the Magistrate sentenced the appellant to a good behaviour order for a period of 24 months, without conviction, pursuant to s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The good behaviour order included a condition which prohibited the appellant from driving, except for limited purposes, for a period of six months (the driving condition).

3․By way of a Notice of Appeal filed on 19 March 2024, the appellant appeals from this sentence. The specific grounds of the appeal are as follows:

(a)That the sentence given by the learned Magistrate, and in particular, the twenty-four-month good behaviour order and the restricted licence conditions, are manifestly excessive.

(b)That the learned Magistrate made an order she was not legally empowered to make, by imposing restricted licence conditions as part of a sentence in circumstances where:

(i)There was no application before the Court below for a restricted licence pursuant to Regulation 45 of the Road Transport (Driver Licensing) Regulation 2000 (ACT); and

(ii)Section 18 of the Sentencing Act does not empower the learned Magistrate to make a “restricted licence” as part of a good behaviour order imposed pursuant to that section.

4․The Director of Public Prosecutions (the Director) conceded that the driving condition was an order made contrary to law. She submitted that the Court should vary the order by removing the condition pursuant to s 218(1)(a) of the Magistrates Court Act 1930 (ACT), and that the appeal should be otherwise dismissed.

5․For the reasons outlined below, I have not accepted the Director’s concession concerning the validity of the driving condition. Contrary to the appellant’s contention, the driving condition was not an order made under s 18 of the Sentencing Act, but was simply a condition of a good behaviour order made under ss 13 and 17 of the Sentencing Act. It was open to the Magistrate to make the driving condition under those provisions. The appellant has not demonstrated that the penalty imposed was manifestly excessive. Accordingly, the appeal should be dismissed.

Background

The offending

6․On 30 September 2023, police were conducting Random Breath Testing on Parkes Way. At about 10:40pm, the appellant, the driver of the vehicle, was directed to pull over into the random breath test lane. At the time, the appellant had two children in the car. Police conducted an alcohol screening test on the appellant, which returned a positive result. A secondary test with an approved screening device was conducted, which also returned a positive result. The appellant was taken into police custody. She later underwent a breath analysis which returned a reading of 0.078 grams of alcohol per 210 litres of breath, constituting a level 2 driver: s 4E of the RT(AD) Act. The appellant told police she was driving from Ngunnawal to Nightfest in the city.

The sentence proceedings

7․The proceedings were first listed in the ACT Magistrates Court on 22 November 2023. The appellant entered a plea of guilty to the charge on 13 December 2023.

8․The appellant’s sentence proceedings were heard on 21 February 2024. On that occasion, the appellant’s solicitor tendered several character references, a letter of apology from the appellant and psychological material. The appellant’s lawyer noted that the appellant was a first-time offender, and referred to the appellant’s remorse. She also referred to the stress that the appellant was suffering as a result of a relationship breakdown. The appellant’s lawyer urged the Magistrate to proceed without conviction. In this respect, she particularly emphasised the effect that a loss of licence would have upon the appellant’s children (then aged 10 and 13 years), and upon the prospects of that affecting the custody arrangements for the care of the children.

9․In response, the prosecutor stated that he “wouldn’t necessarily be heard” against the Magistrate proceeding by way of a non-conviction order under s 17 of the Sentencing Act.

10․After hearing these submissions, the Magistrate informed the parties that if she were to consider dealing with the matter by way of a non-conviction order, she would “impose some restrictions on [the appellant’s] licence”.

11․The appellant’s lawyer responded:

My understanding is that when a non-conviction is imposed … restrictions can’t be made however, I am very happy to take instruction if your Honour is of the view that they can be.

12․After the Magistrate informed the appellant’s lawyer that she was proposing to restrict the appellant from driving except “for the purpose of attending work or transporting the children or caring for the children”, the appellant’s lawyer indicated that the appellant had “no issue” with an order in this form. The prosecutor also did not seek to be heard on this issue.

The Magistrate’s decision

13․The Magistrate then delivered an ex tempore decision. In that decision, the Magistrate referred to the risk of accident or death that the appellant had placed her children in by driving whilst affected by alcohol. Her Honour stated that she took into account the appellant’s early plea of guilty and that the appellant was otherwise a person of good character. Taking into account these matters, her Honour concluded:

HER HONOUR: … Anyway, I’m going to treat it is a one-off mistake and obviously if you come back to the court then you would be in a different position. I am, with reservation, going to deal with you by way of a without conviction bond. It’s going to require that you be of good behaviour for a period of two years.

It’s also going to have a special condition that between today and 21 August – did you drive to court today?

THE DEFENDANT: Yes I did.

HER HONOUR: Which is a six-month period. Which I might say is the default period that you would be taken off the road entirely if I didn’t make any order about your licence. I am restricting the reasons why you can drive. So I am saying that you may drive a motor vehicle if you are licenced to do so in the following circumstances: to travel to or from work; or for the purpose of caring for your children and taking them to activities; or for the purpose of attending court. So, I am restricting that ability.

In one way, Ms Rutzou, given that your children had to go with you in the police car, I’ve thought it may be better for them to see the lesson that there is a consequence and that you can’t drive. But I am extending this leniency to you today because you do seem to have taken responsibility for the matter and you’ve undertaken the course yourself and I’ve read the character material. All right.

14․The good behaviour order, which was signed by the appellant on 21 February 2024, states as follows:

The Court has, without proceeding to a conviction, made a good behaviour order in relation to you for the above offence(s). The term, condition and requirements are set out below.

15․The term of the good behaviour order is recorded as 2 years, with a commencement date of 21 February 2024.

16․The conditions of the good behaviour order are as follows:

(1)To be of good behaviour for a period of 2 year(s).

(2)To comply with the offender’s good behaviour obligations, including the core conditions of the order under sections 85 and 86 of the Crimes (Sentence Administration) Act 2005 (ACT).

(3)Between 21/2/24 and 21/8/24 may drive or ride a motor vehicle if licenced to do so in the following circumstances only: to travel to work or for the purposes of caring for her children and taking them to activities, or for the purpose of attending court.

Relevant legislation

17․A non-conviction order may be made under s 17 of the Sentencing Act, which provides as follows:

17.Non-conviction orders—general

(1)This section applies if an offender is found guilty of an offence.

(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a)an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b)a good behaviour order under section 13.

Note  A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).

(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a)the offender’s character, antecedents, age, health and mental condition;

(b)the seriousness of the offence;

(c)any extenuating circumstances in which the offence was committed.

(4)The court may also consider anything else the court considers relevant.

Note  An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).

(5)If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.

Note 1  For notice of a good behaviour order under s (2) (b), see s 103.

Note 2 For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J).

(6)Failure to comply with subsection (5) does not invalidate the non‑conviction order.

(7)If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years.

(8)This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).

18․Where a non-conviction order is made under s 17, a court may also make ancillary orders under s 18 of the Sentencing Act, which provides as follows:

18.Non-conviction orders—ancillary orders

(1)This section applies if the court makes a non-conviction order for an offender for an offence.

(2)The court may make any ancillary order that it could have made if it had convicted the offender of the offence.

(3)The offender has the same rights of appeal in relation to the making of the ancillary order as the offender would have had if the order had been made on the conviction of the offender for the offence.

(4)This section is subject to section 134 (Operation of ancillary and restitution orders).

(5)In this section:

ancillary order means an order or direction in relation to any of the following:

(a)restitution;

(b)compensation;

(c)costs;        

(d)forfeiture;

(e)destruction;

(f)disqualification or loss or suspension of a licence or privilege.

Examples

1     a reparation order

2     a driver licence disqualification order

19․As extracted above, s 17(2) provides that where no conviction order is made, the court may either dismiss the charge, or the court may impose a good behaviour order under s 13 of the Sentencing Act. Section 13 of the Sentencing Act provides as follows:

13. Good behaviour orders

(1)This section applies if an offender is convicted or found guilty of an offence.

Note If a good behaviour order is made without convicting the offender (see s 17), it is also a non-conviction order (see s 17 (2)).

(2)The court may make an order (a good behaviour order) requiring the offender to sign or give an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a stated period.

(3)An undertaking—

(a)may be signed or given before the court; and

(b)if given before the court, must be recorded by the court.

(4)A good behaviour order may include 1 or more of the following conditions:

(a)that the offender give security for a stated amount, with or without sureties, for compliance with the order;

Note     This paragraph does not apply to a young offender (see s 133M).

(b)a community service condition;

Note    A community service condition must not be included in the order unless the offender is convicted of the offence (see s 87).

(c)a rehabilitation program condition;

Note    A good behaviour order that includes a rehabilitation program condition must also include a probation condition or supervision condition (see s 95 and s 133V).

(d)a probation condition;

(e)that the offender comply with a reparation order;

(f)a condition prescribed by regulation for this paragraph;

(g)any other condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate.

Examples of conditions for par (g)

1        that the offender undertake medical treatment and supervision (eg by taking medication and cooperating with medical assessments)

2          that the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer

3        that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling

4        that the offender not drive a motor vehicle or consume alcohol or non‑prescription drugs or medications

5        that the offender regularly attend alcohol or drug management programs

Note   See s 133M for additional conditions available for young offenders (education and training conditions and supervision conditions).

(5)If the offence is punishable by imprisonment, a good behaviour order—

(a)may be made instead of imposing a sentence of imprisonment or as part of a combination sentence that includes imprisonment; and

(b)may apply to all or part of the term of the sentence.

(6)Subsection (5) does not, by implication, limit the sentences that a court may impose under this Act or another territory law.

(7)If the good behaviour order includes a community service condition, it is a community service order.

(8)If the good behaviour order includes a rehabilitation program condition, it is a rehabilitation program order.

(9)This section is subject to chapter 6 (Good behaviour orders).

Determination

Did the Magistrate err by imposing a condition of the GBO restricting the appellant’s licence?

The appellant’s contention

20․The appellant contended that the Magistrate erred by imposing a “restricted licence condition” under s 18 of the Sentencing Act, relying on the decision of this Court in Miller v Tighe [2017] ACTSC 185; 322 FLR 299.

21․In Miller, Mossop J held that s 18 of the Sentencing Act did not authorise an order that an offender not drive “other than to or from work by the most direct route”. Central to his Honour’s reasoning was s 18(2), which provides that “the court may make an ancillary order that it could have made if it had convicted the offender of the offence”, and s 18(5)(f) which defines an ancillary order to mean “an order or direction in relation to any of the following: … disqualification or loss or suspension of a licence or privilege” (emphasis added).

22․His Honour held that an order “restricting” the offender’s licence could not have been made if the Court had “convicted” the offender: Miller at 301 [6]. His Honour observed that there is no statutory provision that permits a court to partially suspend the operation of the licence of a driver who has been convicted of a drug driving offence. Rather, his Honour observed (at 301 [7]):

The effect of the orders made in the present case was similar to that which might have arisen had the respondents been disqualified from driving and then made an application to the Magistrates Court for an order permitting the grant of a restricted licence. That is a course permitted by s 45 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) (RTDL Regulation). There are restrictions on the category of person who is entitled to so apply: Road Transport (General) Act 1999 (ACT) ss 66A, 67, 67A(2), 67B, 67C, 88(4). If an application is made and the threshold of “exceptional circumstances” is met then it is open to the Court to include in the order the conditions to which the restricted licence is to be subject: RTDL Regulation s 48(4). Those conditions include “the journeys that the person may undertake”: RTDL Regulation s 48(5)(b) and “the purposes for which the person may drive”: RTDL Regulation s 48(5)(c). It is not unusual for magistrates to include, in an order permitting the grant of a restricted licence, conditions that the licence holder drive only for the purposes of the person’s employment or to and from their place of employment by the most direct route. However, the fact that such conditions may be imposed as a result of a separate statutory process that only becomes available after a person is disqualified from holding a licence, does not mean that equivalent conditions may be imposed under s 18 of the Sentencing Act. That is because the imposition of conditions upon a licence is not a power which the court could have exercised had the person been convicted. Rather it was a separate statutory power which only existed in circumstances where there had been a disqualification, where there was a separate application made by the person to the Magistrates Court and where the various preconditions to and qualifications upon the power to make an order had been met.

23․There are two related impediments to applying the decision in Miller to the present case.

24․First, in contrast to Miller, the Magistrate in the present case did not purport to make a restriction under s 18 of the Sentencing Act. Rather, as is clear both from the ex tempore sentencing reasons, and the good behaviour order itself, the order prohibiting the appellant from driving was made as a condition of the good behaviour order, rather than as an ancillary order under s 18.

25․Second, in Miller, Mossop J expressly left open the question whether it would be permissible to impose a driving restriction as a condition of a good behaviour order. Specifically, after noting that there was a discrepancy between the perfected orders that had been entered by a Deputy Registrar (which correctly recorded that an order had been made under s 18, separate to the good behaviour order), and the “Official Notice” of the good behaviour order (which suggested that the s 18 order was in fact a condition of the good behaviour order), his Honour continued (at 302 [10]):

However these matters do draw attention to the question of whether a restriction on the purpose for which a person may drive could have been imposed as a condition upon each respondent’s good behaviour order. Section 13(3)(g) of the Sentencing Act permits, as a condition upon a good behaviour order, “(g) any other condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate”. The examples to s 13(3)(g) include “4 that the offender not drive a motor vehicle ...” It is not necessary in the present case to determine whether her Honour could have achieved the outcome that she intended to achieve by imposing a condition similar to that which she purported to make under s 18 by means of a condition upon the good behaviour order.

26․Accordingly, the question to be addressed is not (as identified in the Notice of Appeal) whether a driving restriction can be made under s 18 of the Sentencing Act, but whether such a restriction can be made as a condition of a good behaviour order imposed under s 13 of the Sentencing Act. It is to that question that I now turn.

Can a driving restriction be imposed as a condition of a good behaviour order?

27․The power to impose conditions on a good behaviour order is broad. Section 13(4)(g) of the Sentencing Act states that:

(4)A good behaviour order may include 1 or more of the following conditions:

…

(g)any other condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate.

Examples of conditions for par (g)

1       that the offender undertake medical treatment and supervision (eg by taking medication and cooperating with medical assessments)

2       that the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer

3       that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling

4       that the offender not drive a motor vehicle or consume alcohol or non-prescription drugs or medications

5       that the offender regularly attend alcohol or drug management programs

Note    See s 133M for additional conditions available for young offenders (education and training conditions and supervision conditions).

28․The only restriction on the conditions that may be imposed is that a condition must not be “inconsistent” with the Sentencing Act or the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act).

29․The appellant’s solicitor, and counsel for the Director each contended that the driving condition imposed by the Magistrate was inconsistent with s 18 of the Sentencing Act.

30․Counsel for the Director put the argument most succinctly. She submitted that a court cannot make a condition of a good behaviour order where that condition is an ancillary order under s 18. For example, she submitted, a court could not impose a condition of a good behaviour order which required an offender to pay a fine, or to pay compensation or restitution.

31․It is clear that a court cannot impose a “disqualification order” as a condition of a good behaviour order. However, the condition imposed by the Magistrate was qualitatively different from a disqualification order. A disqualification order prohibits a person from holding or obtaining a driver’s licence. In contrast, the condition imposed by the Magistrate precludes the appellant from driving, except for specified purposes.

32․The difference may be subtle, but it is legally significant. A raft of provisions apply to disqualification orders which have no application to the order that was imposed by the Magistrate. Most significantly, where a person drives in breach of a disqualification order, the person will be guilty of a criminal offence: s 32(1) of the Road Transport (Driver Licensing) Act1999 (ACT). Further mandatory periods of disqualification will follow: s 32(5) of the Driver Licensing Act. In contrast, if the appellant were to contravene the condition imposed by the Magistrate (for example, by driving to a friend’s house to socialise), the appellant would be in breach of the good behaviour order, but would not have committed an offence of driving whilst disqualified, nor would any mandatory period of disqualification follow from that conduct.

33․An analogous issue was considered by the Full Federal Court in Commonwealth Director of Public Prosecutions v Evans [2022] FCAFC 182; 294 FCR 512. Evans concerned an offender who was sentenced in the Supreme Court of Norfolk Island for Commonwealth drugs and firearms offences. In Norfolk Island, no formal arrangements have been entered into to permit home detention for federal offenders to take place. As a result, s 20AB of the Crimes Act 1914 (Cth), which permits, inter alia, the imposition of a home detention order where the offender is being sentenced in a “participating” State or Territory could not apply. The primary judge in Evans held that there was power to “achieve the same result” by making home detention a condition of a recognisance imposed under s 20(1)(a)(iv) and (b) of the Crimes Act.

34․The Commonwealth Director of Public Prosecutions (Commonwealth DPP) appealed, contending that the Supreme Court did not have power under s 20(1)(a) to make a home detention order, or an order which was “substantially similar” to a home detention order. The Commonwealth DPP, relying on Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, submitted that “as s 20AB of the Crimes Act explicitly provides the power and mechanism by which State based alternatives to imprisonment, such as home detention, can be imposed on federal offenders, the broad and general power in s 20(1)(a)(iv), as picked up by s 20(1)(b), cannot be relied on to bypass that regime”: Evans at 522 [33].

35․In dismissing the Commonwealth’s appeal, Bromwich J (with whom Allsop CJ and Wigney J agreed) accepted that “it is not for a court to bypass the legislative choice as to the steps that must be taken before such a regime becomes available, for to do so is contrary to the principle laid down in Anthony Hordern”: Evans at 522 [36].

36․However, his Honour continued, this conclusion did not determine the outcome of the appeal. Rather, “[it] remain[ed] a question of characterisation of precisely what it was that his Honour did by making order 2(d) and the facilitative orders 2(e)-(g)”: Evans at 522 – 3 [37]. His Honour concluded (at 522 – 3 [37]):

While the primary judge considered himself to be imposing an effective sentence of home detention, and erroneously reasoned that to do this was permissible, that is not in fact what the impugned conditions did. Read carefully, his Honour imposed conditions on the recognisance release as was authorised by s 20(1)(a) and (b), not a further or different sentence, which was not authorised except by s 20AB when it applied.

37․In a concurring judgment, Wigney J found that the “narrow and restrictive construction” of s 20(1) which had been advanced by the Commonwealth DPP was “not supported by the text, context and evident purpose” of the provision: Evans at 515 [13]. His Honour held (at 515 [13] – [14]) that the Commonwealth’s construction:

… would have unreasonable consequences because it could preclude a sentencing judge from ordering the release of an offender on conditions which would otherwise be entirely appropriate to achieve the objectives of sentencing, including punishment, deterrence and rehabilitation. It would have impracticable consequences because it would effectively mean that, before ordering the conditional release of a federal offender under s 20(1), a sentencing judge would have to somehow ensure that the order was not substantially similar to an order that could possible be made, including in a different state or territory, by virtue of s 20AB of the Crimes Act.

The words ‘such other conditions (if any) as the court thinks fit to specify in the order’ in s 20(1)(a)(iv) are very wide and not amenable to the narrow construction of s 20(1) of the Crimes Act proposed by the Director.

38․The same reasoning applies with equal force to the present appeal. To succeed on this ground of appeal, the appellant must establish that s 18 has the effect of carving out matters which would otherwise be within the scope of s 13. She must not only demonstrate that a court cannot make a ‘disqualification order’ as a condition under s 13; she must also demonstrate that s 13 precludes the making of a condition which is in substance the same as a disqualification order. As in Evans, there is no textual, contextual or purposive support for such a construction of s 13.

39․Section 13(1)(g) confers a broad power to make any condition which is “not inconsistent” with the Act or the Sentence Administration Act. The statutory example provided in s 13(4)(g), namely “that the offender not drive a motor vehicle or consume alcohol or non‑prescription drugs or medications” is a strong indication that the legislature did not intend the existence of s 18 to limit the power of a court to make a condition under s 13 which prohibits an offender from driving a motor vehicle (either generally, or in specific circumstances). The Explanatory Statement to the Crimes (Sentencing) Bill 2005 confirms that cl 13(3)(g) (now s 13(4)(g)), “authorises the Court to impose any conditions the Court considers appropriate and consistent [with the Act and the Sentencing Administration Act]”. In short, s 13 confers a flexible power on a court to craft conditions which will best meet the competing (and often contradictory) purposes of sentencing in the individual case: see s 7 of the Sentencing Act; see similarly Evans at 513 [1] (Allsop CJ).

40․As in Evans, the order made by the Magistrate in the present case was an example of precisely the kind of careful crafting which the legislature intended to facilitate when it enacted s 13. By precluding the appellant from driving except for specific purposes, the condition met the need for deterrence (both general, and specific), and the need for the protection of the community. However, by expressly permitting the appellant to continue to drive to work, to court, and when otherwise required for her children, the condition ensured that the appellant and her children would not suffer the significant further adverse consequences which might otherwise follow from disqualification of the appellant’s driver’s licence (in particular the risk to the appellant’s custody of the children if disqualification were ordered).

41․The driving condition imposed by the Magistrate was not inconsistent with the Sentencing Act or the Sentence Administration Act. Indeed, it positively facilitated the principles which underlie both enactments: see similarly Evans at 515 [14]. This ground of appeal must be dismissed.

A further comment

42․Before leaving this ground of appeal, it is important to note that nothing in the reasoning outlined above is intended to condone the imposition of a non-conviction order for the sole purpose of avoiding a mandatory disqualification period: cf Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305; 147 A Crim R 546 at 337 [132]. Counsel for the Director expressly disclaimed any suggestion that this had occurred in the present case.

Was the sentence imposed manifestly excessive?

43․The principles to be applied where a ground of appeal alleges that a sentence is manifestly excessive are well established. In Porter v The Queen [2024] ACTCA 9 at [133], citing Hawker v R [2020] ACTCA 40 at [14], the principles were summarised as follows:

The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge: Lowndes v R [1999] HCA 29; 195 CLR 665 at [15]; Markarian v R [2005] HCA 25; 228 CLR 357 at [28], or where the result arrived at below is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v R; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [58]. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76].

44․The appellant’s solicitor placed before the Court an ACT Sentencing Snapshot providing an overview of sentencing patterns in the ACT Magistrates Court and Children’s Court between 1 July 2012 and 31 August 2015 which was said to indicate that a good behaviour order of 2 years was of a longer duration than most good behaviour orders that are imposed for like offending.

45․The limitations of statistics are well recognised: R v Pham [2015] HCA 39; 256 CLR 550; Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at 537 [55]. In the present case, those limitations are pronounced. The statistics contain no information concerning the objective circumstances of the offending (in particular, as to whether the offending was aggravated by the presence of children, as in the present case). Nor do the statistics provide any information as to whether the good behaviour orders there reported were made following conviction, or whether any associated disqualification followed from such convictions. In these circumstances the statistics did not demonstrate that the sentence imposed was manifestly excessive.

46․At the time of the offending, the offence carried a maximum penalty of a fine of $800 when committed by a first offender: s 26(1) of the RT(AD) Act.[1]

[1] The fine and disqualification periods that applied to the offending were amended whilst the present appeal was pending. The maximum penalty for a level 2 offence contrary to s 19 committed by a first offender is now $4000. Pursuant to s 84A(2) of the Legislation Act 2001 (ACT), the increased penalty does not apply to the present appeal.

47․As counsel for the Director submitted, the offending could not be described as low end. The appellant was driving with two children in her car. This significantly aggravated the seriousness of the offence. Even taking into account the appellant’s remorse, and the unlikelihood of reoffending, there remained a need for specific and general deterrence. Denunciation and the protection of the community were also relevant considerations to be taken into account.

48․The appellant was afforded the leniency of a non-conviction order. Other than the condition relating to the appellant’s driving, which was limited to 6 months’ duration, the good behaviour order was subject only to the core conditions contained in s 86(1) of the Sentence Administration Act. Section 86(1) provides:

86Good behaviour – core conditions

(1)The core conditions of an offender’s good behaviour order are as follows:

(a)the offender must not commit—

(i)   an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or

(ii)     an offence outside Australia against a law of a place outside Australia that, if it had been committed in Australia, would be punishable by imprisonment;

(b)if the offender is charged with an offence against a law in force in Australia or elsewhere—the offender must tell the director-general about the charge as soon as possible, but within 2 days after the day the offender becomes aware of the charge;

(c)if the offender’s contact details change—the offender must tell the director-general about the change as soon as possible, but within 2 days after the day the offender knows the changed details;

(d)the offender must comply with any direction given to the offender by the director-general under this Act or the Corrections Management Act 2007 in relation to the good behaviour order;

(e)any test sample given by the offender under a direction under section 95 (Good behaviour orders—community service work—alcohol and drug tests) must not be positive;

(f)if the good behaviour order is subject to a probation condition or supervision condition—the offender must not leave the ACT for more than the defined period without the director-general’s approval;

(g)the offender must comply with any agreement made by the offender under section 105 (Good behaviour—agreement to attend court);

(h)any condition prescribed by regulation that applies to the offender.

49․As the appellant’s solicitor acknowledged, these conditions do not impose any practical restriction on the appellant’s liberty.

50․The appellant has not demonstrated that the sentence imposed was manifestly excessive. This ground of appeal must also be dismissed.

Orders

51․For the above reasons, the following orders are made:

(1)The appeal is dismissed.

I certify that the preceding fifty one [51] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 10 July 2024

Amendments

13 August 2024          Replace “RT(AD) Act” with “Sentencing Act”            Paragraph: [5]