Smorhun v Devine
[2014] ACTSC 208
•29 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Smorhun v Devine |
Citation: | [2014] ACTSC 208 |
Hearing Dates: | 10 October 2013 |
DecisionDate: | 29 August 2014 |
Before: | Penfold J |
Decision: | 1. The appeal is upheld. 2. The sentences imposed in the Magistrates Court are set aside and the appellant will be re-sentenced. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – respondent sentenced after consideration in Galambany Court (circle sentencing) – Magistrate imposed sentences recommended by panel of members of Aboriginal and Torres Strait Islander community – appeal on basis that Magistrate failed to give adequate reasons – Magistrate expressed no reasons for sentence – whether Magistrate required to give reasons for sentence – Magistrate did not exercise sentencing discretion – appeal allowed – respondent to be re-sentenced. CRIMINAL LAW – JURISDICITION, PRACTICE AND PROCEDURE – Judgment and Punishment – respondent sentenced after consideration in Galambany Court (circle sentencing) – whether sentencing principles different in circle sentencing – whether sentencing considerations to be weighted differently in circle sentencing – appeal allowed – respondent to be re-sentenced. |
Legislation Cited: | Crimes (Sentencing) Act (ACT), ss 32, 33 Criminal Law (Sentencing) Act 1988 (SA), s 9C Magistrates Court Act 1930 (ACT), div 3.10.3, ss 219B(1)(f), 219D(a), 219D(e), 219F(1)(a), 219F(2)(c), 219F(2)(d), 219F(2), ch 4C, ss 291L, 291M, 291N, 291N(2) Explanatory Statement, Courts Legislation Amendment Bill 2010 (ACT) Magistrates Court Practice Direction 1 of 2012 |
Cases Cited: | AB v The Queen (1999) 198 CLR 111 Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act 61 for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305) Bugmy v The Queen (2013) 249 CLR 571 The Queen v TW (2011) 6 ACTLR 18 |
Texts cited: | The Circle Court in the ACT – an overview and its future (1 September 2007) Australasian Institute of Judicial Administration, 16 |
Parties: | Luke Daniel Smorhun (Appellant) Emily Catherine Devine (Respondent) |
Representation: | Counsel: Ms M Jones (Appellant) Ms K Bills (Respondent) |
| Solicitors: ACT Director of Public Prosecutions (Appellant) Aboriginal Legal Service (NSW/ACT) Ltd (Respondent) | |
File Number: | SCA 41 of 2013 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 12 June 2013 Case Title: Luke Daniel Smorhun v Emily Catherine Devine Court File Numbers: Folder No. 159972 (CC12/9643; CC12/9644; CC12/9645) |
Introduction
This is a Crown appeal against sentences imposed in the Magistrates Court in respect of three offences, being an offence of driving with the prescribed concentration of alcohol, an offence of speeding and an offence of disobeying a “left turn only” sign.
As well as being convicted on all the offences, the respondent was sentenced as follows:
(a)on charge CC2012/9645, being a charge that, as a repeat offender, the respondent drove with a level 4 blood alcohol reading (specifically a reading of 0.189) – a fine of $550, a six‑month good behaviour order, and a licence disqualification for two years.
(b)on charge CC2012/9643, being a charge of disobeying a “left turn only” sign – a fine of $200;
(c)on charge CC2012/9644, being a charge of exceeding the speed limit by more than 30 and no more than 45 km/h – a fine of $250.
The respondent was given six months in which to pay the fines.
The appeal
Nature of appeal
This is a review appeal under Division 3.10.3 of the Magistrates Court Act 1930 (ACT) (s 219B(1)(f)). The challenges to the Magistrate’s decision are made under s 219D(a) (that there was “a prima facie case of error or mistake” on the part of the Magistrates Court) and 219D(e) (that the sentence or penalty was manifestly inadequate).
The powers of the Supreme Court on such an appeal are to dismiss the appeal (s 219F(1)(a)) or to set aside, quash, vary or amend the Magistrates Court decision. If the decision is set aside, quashed, varied or amended, the Supreme Court may, relevantly, impose the sentence or penalty it considers appropriate or exercise any power that the Magistrates Court might have exercised (s 219F(2)(c)), but may not remit the matter to the Magistrates Court (s 219F(2)(d)).
Grounds of appeal
The grounds of appeal were as follows:
a. the sentences imposed were each manifestly inadequate;
b. the learned magistrate erred in failing to give reasons for the sentences imposed; and
c. the learned magistrate erred in failing to determine an appropriate sentence for each offence before considering totality.
The circumstances of the offences
The offences were described in the police Statement of Facts that was before the Magistrates Court as follows:
About 10.50pm on Saturday 3 November 2012, Police were conducting mobile traffic patrols in the north lanes of Northbourne Avenue, Lyneham in the Australian Capital Territory (ACT). About this time Police were 300 metres south from the Morphett Street, Dickson intersection.
The west lane of Morphett Street, Dickson terminates at the south lanes of Northbourne Avenue and is controlled by a left turn only sign and left turn only road marking, which directs all traffic to enter the south lanes of Northbourne Avenue.
At this time Police observed a green Mazda 656 sedan with ACT registration ... travelling on the west lane of Morphett Street as it approached Northbourne Avenue. The Mazda maintained a westerly direction as it crossed all three south lanes of Northbourne Avenue, perpendicularly to traffic and disobeying street sign direction to turn left onto the south lanes of Northbourne Avenue.
As the Mazda travelled west, Police observed it enter a slip lane open to east travelling vehicles only and against the flow of traffic. Several east travelling vehicles attempting to enter Morphett Street stopped abruptly to avoid colliding with the Mazda.
FIRST CHARGE – DISOBEY LEFT TURN ONLY SIGN
Police follows the Mazda as it turned right and travelled in the north lanes of Northbourne Avenue. Police observed the Mazda to be travelling faster than the flow of traffic and speed matched it between Murdoch Street and Mouat Street, Lyneham, a distance of about 500 metres.
During this distance the Police vehicle did not gain nor fall behind the Mazda and displayed a constant 99 kilometres per hour (Km/h), indicating that the Mazda was travelling at 99 Km/h. Police captured this speed on the Police vehicle and obtained a digital image of it shortly after the incident.
During this distance Police observed two 60 Km/h signs facing the north lanes of Northbourne Avenue, indicating that the speed limit for the distance of road was 60 Km/h.
SECOND CHARGE – EXCEED SPEED LIMITED
Police activated the emergency lights and sirens on the Police vehicle and indicated for the female driver of the vehicle to stop her vehicle, which she did on Mouat Street, Lyneham ACT.
Police spoke to the female driver of this vehicle, Emily Catherine DEVINE, ... the Defendant now before the Court.
The Defendant produced a current ACT Proof of Age card, number ... in the name of Emily Catherine DEVINE, ... and she confirmed her identity to Police. Police were satisfied that the image on the Proof of Age card matched the appearance of the Defendant.
Constable Luke SMORHUN, the Informant, spoke with the Defendant at the road side.
The Informant said: “Ma’am, I caused you to stop because I observed you turned off Morphett Street onto Northbourne Avenue against the line markings and into traffic. Do you have a lawful excuse for doing that?”
The Defendant said: “I didn’t realise”
The Informant said: “Do you have a lawful excuse for doing 99 in a 60 zone?”
The Defendant said: “No”
Police observed the Defendant to have bloodshot, watery eyes and detected the strong smell of intoxicating liquor emanating from her breath and person. Police formed the opinion that the Defendant was heavily affected by alcohol.
The Defendant was required to undergo a screen test for alcohol, using an approved screening device, being an Alcolizer LE. This test indicated positive and the Defendant was taken into Police custody and conveyed to City Police Station.
An observation period of the Defendant commenced at 11.04pm that day. Police maintained constant supervision of the Defendant, during which the Defendant did not burp, vomit or consume anything.
At 11.26pm that day the Defendant underwent breath analysis, the result of which was 0.189 grams of alcohol in 210 litres of breath.
The Defendant is the holder of ACT driver’s licence number ..., class C, expiry 17 June 2014, making her subject to a blood alcohol limit of 0.05 grams of alcohol per 210 litres of breath.
THIRD CHARGE – DRIVE MOTOR VEHICLE WITH ALCOHOL IN BLOOD/BREATH
As the Defendant’s blood alcohol content was analysed to be in excess of 0.1 grams of alcohol in 210 litres of breath, she was issued with Immediate Suspension Notice 03112012/2395, pursuant to section 61B of the Road Transport (General) Act 1999. The Defendant’s right to drive in the ACT was suspended from 11.40pm Saturday 3 November 2012 for a period of 90 days.
The operator of the Drager Alcotest 7110 Breath Analysing Instrument, Constable Luke SMORHUN, is an approved breath analysing operator.
Northbourne Avenue, Lyneham ACT and Morphett Street, Dickson ACT consist of bitumen surface which was dry and in good repair. There was street lighting illuminating the intersection at the time of the incident.
Proceedings in the Magistrates Court
The matter came before the Magistrates Court on 29 January 2013.
On that day, the drink-driving charge was amended to reflect the fact that the respondent was a repeat offender, having been convicted of two previous drink-driving offences in 2003 and 2004, the first being a Level 1 offence involving a blood alcohol level of 0.04 and the second being a Level 4 offence involving a blood alcohol level of 0.16.
10. The respondent then adhered to pleas of guilty that had previously been entered, a pre-sentence report was ordered and the matter was referred to the Galambany Court for circle sentencing. On 7 March 2013 the respondent was assessed and found suitable for circle sentencing. The respondent’s written submissions asserted, without challenge, that as a result of the assessment the assessment panel, which had largely the same membership as the hearing panel, recommended that the appellant attend Directions ACT for information and counselling, which she subsequently did.
11. The respondent was sentenced on 12 June 2013. The circle sentencing process, presided over by a Magistrate and also involving a “hearing panel” (the panel) of “members of the Aboriginal and Torres Strait Islander Community approved to be a member of assessment and hearing panels for the Galambany Court” (Magistrates Court Practice Direction 1 of 2012, Dictionary, definition of “member”), was as follows:
(a)The charges were outlined by the prosecutor, and a pre-sentence report was made available to the Magistrate and the panel.
(b)The prosecutor made brief submissions about the seriousness of the offences, while conceding that the respondent was remorseful, as shown by her early plea of guilty.
(c)The panel then, in the Magistrate’s words, “engaged” with the respondent, questioning her about the counselling in which she was participating, the impact of an abusive relationship that she had left some years previously, her employment, her drinking and how she was proposing to deal with it, and her understanding of the possible impact of her offences.
(d)The Magistrate then invited the panel to take some time to consider its recommendations in private.
(e)The hearing resumed about 45 minutes later, and the panel sought more information about the respondent’s previous drink-driving convictions, pointed out to the respondent the need to develop strategies to maintain abstinence, and then indicated its recommendation of a six-month good behaviour order and a fine of $1,000.
(f)There was then some discussion about the licence disqualification period to be recommended, [MC 17-21] and the Magistrate indicated that if she were setting the disqualification period she would “probably be looking at about two years”.
(g)One of the panel members noted that the respondent also looked after her grandmother who suffered dementia, which included driving her grandmother to and from medical appointments.
(h)The panel then indicated that it would recommend a two-year disqualification period, noting that this would be reduced by the three months licence suspension that the respondent had already served.
(i)The Magistrate then asked the panel about the prosecutor’s submission that a community service order would be more appropriate than a fine, having regard to both the seriousness of the offence and the respondent’s difficulty in paying a significant fine, but the panel indicated without further discussion that the recommendation of a fine was to stand.
(j)The Magistrate then asked the panel whether the fine recommended was just to apply to the drink-driving offence. Her Honour explained that, although the maximum penalty for each of the other offences was a fine of $2,200, it would be acceptable, for instance, to impose for each of them the relevant traffic infringement amount, being the amount that could be imposed by a police officer as, in effect, an on-the-spot fine (these were, for speeding, $664 and for disobeying a left turn only sign, $167).
(k)The panel reiterated that the $1,000 fine was intended to cover all the offences, and the Magistrate said that she could divide that amount among the three offences.
12. Her Honour then said:
HER HONOUR: Then can I just confirm that the panel are recommending, and essentially this is how I’ve broken up those matters:
For the speeding offence, conviction and a fine of $250. For the turn left sign, a conviction and a fine of $200. For the PCA offence, a conviction, a fine of $550, disqualification for two years and a good behaviour order for a period of six months. I’m taking from your recommendation that you wish the defendant to attend Directions ACT.
In order for that to be part of the good behaviour order, that would involve the defendant being on probation and under the supervision of the Director of Corrective Services for that six month period and then she would have to attend such educational, vocational or psychological training, particularly in relation to alcohol with Directions ACT. Is that the recommendation of the panel?
MS HARRISON: Yes, it is.
HER HONOUR: Very well. Then I’ll formally make those orders. Then Ms Devine, in relation to the charge that on 3 November 2012, you exceeded the speed limit by greater than 30 kilometres an hour but less than 45 kilometres an hour. You are convicted of that offence and fined $250.
In relation to the disobeying a turn left only sign, you are convicted of that offence and fined $200.
In relation to the level four prescribed concentration of alcohol charge, you are convicted of that offence. You are fined $550. You are disqualified from two years, that period to be reduced by the period that your licence was suspended pursuant to section 61B. You are to enter into a good behaviour order for a period of six months. You will be required to sign an undertaking to comply with the legislative requirements for that period of six months. You will be subject on probation to the supervision of the Director General Corrective Services or an officer delegated to your supervision, and obey all reasonable directions of that officer for a period of six months. You are to attend such educational, vocational or psychological, psychiatric or other assessments, programs or counselling as you’re directed to do, particularly in relation to alcohol, with Directions ACT. If you are brought back to the court and an offence is proved to have been committed by you within the next six months, then you may be re‑sentenced in relation to this matter. Do you understand?
DEFENDANT: Yes, I do.
HER HONOUR: And also if you fail to comply with your good behaviour obligations. Thank you.
MS BILLS: Your Honour, time to pay?
HER HONOUR: Yes, time to pay?
MS BILLS: Six months?
HER HONOUR: I’ll give you six months to pay. Thank you.
Legislation
13. The Magistrates Court Act 1930 (ACT) makes the following provision for the Galambany Court:
Chapter 4C Galambany Court
291LDefinitions—ch 4C
In this chapter:
Aboriginal or Torres Strait Islander offender means an offender who—
(a)is a descendant of an Aboriginal or Torres Strait Islander person; and
(b)identifies as an Aboriginal or Torres Strait Islander person; and
(c)is accepted as an Aboriginal or Torres Strait Islander person by an Aboriginal or Torres Strait Islander community.
circle sentencing means the step in a sentencing proceeding for an Aboriginal or Torres Strait Islander offender that includes members of the Aboriginal or Torres Strait Islander community.
291MGalambany Court
The Magistrates Court is known as the Galambany Court when it is sitting to provide circle sentencing.
291NDirections about procedure for Galambany Court
(1)The Magistrates Court may give a direction in relation to the procedure to be followed in relation to circle sentencing for certain Aboriginal or Torres Strait Islander offenders, and any other relevant matter in relation to circle sentencing.
(2)To remove any doubt, a direction mentioned in subsection (1) is not taken to limit the Magistrates Court’s discretion in sentencing an offender.
(3)Nothing in this section limits the Magistrates Court’s power to give a direction under section 309 (Directions about procedure).
14. The Explanatory Statement for the Courts Legislation Amendment Bill 2010 (ACT), which inserted Chapter 4C, provided the following explanation for the new provisions:
Galambany Court
The specialist Aboriginal and Torres Strait Islander sentencing process, known as ‘Ngambra Circle Sentencing Court’ has existed as part of the ACT Magistrates Court practice since 2004. The purpose of the Circle Court is to provide a culturally relevant sentencing option in the Magistrates Court jurisdiction for eligible Aboriginal and Torres Strait Islander people who have offended.
Amendments to the Magistrates Court Act will give statutory recognition to the ACT Circle Sentencing Court, and rename the Court ‘Galambany’. The Aboriginal and Torres Strait Islander Elected Body recommended the name. It means 'We all, including you'.
15. Magistrates Court Practice Direction 1 of 2012 (the Practice Direction) was issued under section 291N(1) of the Magistrates Court Act. Paragraphs 8 and 10 of the Practice Direction set out the aims of the Galambany Court and the objects of the Practice Direction:
Aims of the Galambany Court
8) The Galambany Court aims to:
i) involve Aboriginal and Torres Strait Islander communities in the sentencing of Aboriginal and Torres Strait Islander defendants;
ii) increase the confidence of Aboriginal and Torres Strait Islander communities in the sentencing process;
iii) reduce barriers between the ACT Magistrates Court and Aboriginal and Torres Strait Islander communities;
iv) provide culturally relevant and effective sentencing options for Aboriginal and Torres Strait Islander defendants;
v) provide Aboriginal and Torres Strait Islander defendants with support services that will assist them to overcome their offending behaviour;
vi) provide support to victims of crime and enhance their rights and participation in the Galambany Circle Sentencing Court process; and
vii) reduce repeat offending by Aboriginal and Torres Strait Islander defendants.
Objects
10) The objects of this Practice Direction are to:
i) provide effective and restorative processes for the criminal justice response to Aboriginal and Torres Strait Island defendants, through community involvement in sentencing;
ii) maintain transparency, consistency and certainty in the practice of the Galambany Court; and
iii) provide an opportunity for enhanced involvement of victims in the Galambany Court.
16. Paragraphs 11-18 of the Practice Direction deal with the assessment of defendants for participation in the Galambany Court. Paragraphs 19-31 deal with the assessment processes, including the nomination of members for the panel. Paragraphs 32-39 relate to who must and who may participate in the assessment and hearing processes.
17. Paragraphs 40-50 deal with the circle sentencing process itself, as follows:
Conduct of the Galambany Court
40) The Galambany Court is to be conducted in a way that:
i) enables the Galambany Court to address the underlying issues causing the defendant’s offending behaviour in determining an appropriate sentence;
ii) encourages the full participation of the offender and the reaching of an agreement about the appropriate sentence; and
iii) provides all participants, including the victim and other members of the community, with an opportunity to address the court about the defendant’s offending behaviour.
41) If the defendant is not represented by a lawyer the Galambany Court Magistrate must explain the sentencing process to the defendant at the commencement of the sentencing hearing.
42) The Galambany Court Magistrate will decide the order of proceedings, having regard to any information the victim or other participants wish to express.
43) The Galambany Court Magistrate may terminate or adjourn the proceedings at anytime.
44) The defendant may withdraw from the circle sentencing process at any time. Where a defendant withdraws his or her consent to participate in circle sentencing the Galambany Magistrate shall remand the defendant to the Magistrates Court for sentencing.
45) Members of the hearing panel may recommend what they consider to be an appropriate sentence for the Defendant. Before recommending an appropriate sentence the hearing panel must consider factors relevant to the sentencing process as prescribed by sections 32 and 33 of the Crimes (Sentencing) Act 2005. The hearing panel must consider culturally inclusive aspects to the sentence.
46) Where possible, any recommended sentence should be achieved through the consensus of the hearing panel members.
47) In recommending a sentence, the hearing panel should recommend a sentence that:
i) contains goals that are realistic and appropriate;
ii) sets out times for implementation and completion of goals; and
iii) provides for the monitoring and regular review of the measures specified in the recommended sentence.
48) Corrective Services and Community Youth Justice may provide advice to the court in determining an appropriate sentence.
49) When the sentencing hearing is completed, the Galambany Court Magistrate must remand the defendant to the Magistrates Court for sentencing. Sentencing in the Magistrates Court may take place on the same day at the conclusion of the Galambany Court proceedings.
50) Where the Galambany Court Magistrate is not satisfied that the recommended sentence is appropriate, the Galambany Court Magistrate will provide reasons why and will outline the sentence the Galambany Court Magistrate intends to impose. The Galambany Court Magistrate will inform participants of the reasons why the sentence is an appropriate sentence.
Consideration
18. For reasons that will become apparent, it is convenient to consider the three grounds of appeal out of order.
Ground (c) – totality
19. As described at [11] and [12] above, the fine imposed on the respondent for three offences was determined as a single amount by the panel and split up by the Magistrate among the three offences when the panel declined to do so.
20. The appellant Crown says that it is "trite law that sentences must be fixed individually for offences before totality should be considered." In support of this proposition the respondent cited the High Court's comments in Mill v The Queen[1] (Mill) at [8] as follows:
8. The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
See also Ruby, Sentencing, 3rd ed. (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.
21. Reference was also made to the ACT Court of Appeal's decision in The Queen v Colin Booth[2] at [29] – [31]; the Court considered these matters and noted:
In Johnson, Gummow, Callinan and Heydon JJ dealt with a contention that the decision in Mill was inconsistent with that of the later decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 but said, at [26] that:
The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. [emphasis added]
22. It is apparent that in Johnson v The Queen[3] (Johnson) their Honours expressed a preference for an approach involving setting individual sentences for each offence and then using the necessary degree of concurrency among sentences to achieve the appropriate total sentence having regard to the principle of totality. That approach was distinguished from the other permissible approach, which involves accumulating shorter sentences to achieve that appropriate total sentence. Their Honours emphasised, however, that what would be erroneous would be having regard only to the total effective sentence to be imposed on the offender.
23. I note first that the comments of the High Court in Mill and Johnson are clearly aimed at sentences constituted by terms of imprisonment. No sensible meaning can be given to the concept of concurrency in the context of multiple fines, so the basic principle of ensuring that the penalties for individual offences do not when accumulated impose an inappropriate burden or punishment on the offender could presumably only be applied in the context of fines by imposing lower individual fines and accumulating them to reach the appropriate total fine.
24. In contrast to the approach preferred by the High Court in Johnson, under which individual sentences can feasibly be set before there is any consideration of the appropriate total sentence, the permissible alternative of fully accumulating shorter sentences to achieve the appropriate total sentence must involve some consideration of the appropriate total sentence before those individual sentences are set. Thus, it cannot be said that any mention of a total sentence before individual sentences are pronounced is necessarily erroneous (see also my dissenting remarks in The Queen v TW[4] at [85] – [92]).
25. Even accepting that, however, it may be that if the panel had been the sentencing court it would have fallen into error, not necessarily by identifying what the members saw as the appropriate total sentence first but probably at least to the extent that they explicitly declined to consider how what they saw as the total appropriate fine should be divided among the individual offences.
26. The Magistrate, however, clearly recognised the need to sentence for each offence individually, and I do not consider that her imposition of three separate sentences totalling the single amount specified by the panel was, as such, rendered erroneous by the panel’s refusal to consider individual sentences for the several offences. Rather, I consider that the problems in the Court’s approach to totality reflected a deeper problem in the Court’s processes, which emerges from a consideration of the appeal ground relating to the Magistrate’s asserted failure to give reasons.
Ground (b) – failure to give reasons
27. This appeal ground is expressed as relating to a failure to give reasons for the sentences imposed. However, an examination of that asserted failure reveals that any failure to give reasons arose from the Magistrate’s failure to exercise her sentencing powers adequately or at all (instead of simply pronouncing the orders sought by the panel).
Did the Magistrate need to give reasons?
28. The need for courts to give reasons for their decisions, and especially for discretionary decisions, is well recognised, as is the fact that the nature and extent of the requirement to give reasons varies according to the kind of court and the kind of decision being made. In Lumby v Cooper[5] at [19] – [20] I said:
19.There is clear authority for both the proposition that sentencing courts must give reasons for their decisions (see, for instance R v Thomson & Houlton (2000) 49 NSWLR 383 at [42]) and the proposition that the proper performance of this obligation in a magistrate’s court must be assessed having regard to the environment in which such courts operate. As explained by Kirby P in relation to the NSW Local Courts (Acuthan v Coates (1986) 6 NSWLR 472 at 479), it would be an error for an appeal court to:
“[examine] this unedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates”.
20.I note this caution, but note also that the relaxed nature of the discussion recorded in the transcript suggests that this is not a case in which the pressures of a busy magistrate’s court can readily be blamed for any errors that might be found in the sentencing process.
29. See also Talukder v Dunbar[6] at [60]; Haddon v Sarhan and Uren[7] at [5] – [6]; Seears v Norman[8] at [19]; Dickson v Johnston and Ors[9] at [167] – [169].
30. The appellant submitted that, like the hearing in the Magistrates Court described in Lumby v Cooper, the circle sentencing process is significantly more relaxed than the normal run of proceedings in “a busy magistrate’s court”. This does not mean that the circle sentencing process needs to generate significantly more comprehensive reasons than would normally be expected from the Magistrates Court, but it does mean that time and workload constraints cannot be relied on to justify either a failure to give reasons or the provision of reasons that would be inadequate even in the normal “busy magistrate’s court”.
31. This in turn means that, subject only to the possible impact of paragraph 50 of the Practice Direction (at [41] to [47] below), if the Galambany Court Magistrate is exercising the powers of the Magistrates Court, he or she needs to give appropriate reasons for decisions made in the exercise of those powers.
32. There are thus two questions to be resolved:
(a)Is the Galambany Court Magistrate exercising the powers of the Magistrates Court when sentencing as part of the circle sentencing process?
(b)Does paragraph 50 relieve the Galambany Court Magistrate of the obligation to give reasons for sentences imposed as part of the circle sentencing process?
33. Chapter 4C of the Magistrates Court Act is explicit that the Galambany Court is simply the Magistrates Court by another name (s 291M).
34. Under s 291M, the Magistrates Court goes by that other name when it is sitting to provide circle sentencing, which is defined in s 291L as “the step in a sentencing proceeding for an Aboriginal or Torres Strait Islander offender that includes members of the Aboriginal or Torres Strait Islander community” (emphasis added).
35. Section 291N(2) of the Magistrates Court Act specifies that “the Magistrates Court’s discretion in sentencing an offender” is not limited by the Court’s power to give directions about circle sentencing; this in my view implies that the Magistrates Court’s sentencing discretion is intended to survive the Galambany Court processes and any directions issued about them.
36. I can see nothing in the Magistrates Court Act that removes the sentencing discretion from the Galambany Court Magistrate or that frees the Magistrate from the obligation to exercise his or her own discretion in imposing sentence, and the provisions mentioned above confirm that the Magistrate is to exercise the Magistrate’s normal sentencing discretion, but with the benefit of the panel’s input to that process. Obviously, the Practice Direction provisions could not displace the Magistrates Court Act provisions, but there is nothing in the Practice Direction that suggests that the provisions of that Act should be read as removing the sentencing discretion from the Magistrate and conferring it on the panel.
37. Three provisions should, however, be mentioned specifically.
38. Paragraph 45 of the Practice Direction provides for the panel to recommend what they consider an appropriate sentence. The panel members are required to consider “culturally inclusive aspects” in addition to, not instead of, their obligation to consider ss 32 and 33 of the Crimes (Sentencing) Act, which set out the basic considerations relevant in any sentencing process. It could be argued that this provision reflects an intention to transfer of the sentencing discretion to the panel, but as already noted, such an implication could not override the explicit indications that the sentencing power is to remain with the Magistrates Court. What this paragraph does in my view imply is:
(a)that circle sentencing is not intended to alter the matters that need to be taken into account in sentencing, except by adding the “culturally inclusive aspects” about which the panel is expected to be expert; and
(b)the expectation that the panel will engage with the matters that need to be considered in any sentencing process as well as considering matters of particular cultural significance.
39. If those conclusions are correct, then the outcome of the circle sentencing process would seem to require at least as much public explanation as any other sentencing outcome.
40. Paragraph 49 of the Practice Direction makes it clear that the “sentencing hearing” in the Galambany Court does not involve the imposition of sentence, but that at the end of that hearing, the defendant must be remanded to the Magistrates Court for sentencing. That sentencing may, however, take place immediately after the conclusion of the Galambany Court proceedings.
41. Paragraph 50 of the Practice Direction is as follows:
Where the Galambany Court Magistrate is not satisfied that the recommended sentence is appropriate, the Galambany Court Magistrate will provide reasons why and will outline the sentence the Galambany Court Magistrate intends to impose. The Galambany Court Magistrate will inform participants of the reasons why the sentence is an appropriate sentence.
42. The appellant argued that the first sentence of that paragraph deals with the case where the Magistrate disagrees with the sentence recommended by the panel, and that the second sentence deals with the alternative case, where the Magistrate agrees with the recommended sentence. This, the Crown says, preserves the Magistrate’s obligation to provide reasons for sentence.
43. The respondent submitted that paragraph 50 only applies where the Magistrate disagrees with the panel’s recommendations and that where there is agreement there is no need for the Magistrate to give reasons for the sentence imposed.
44. I agree with the respondent’s submission that paragraph 50 applies only in a situation in which the Magistrate does not propose in the exercise of his or her own sentencing discretion to impose the sentence recommended by the panel. The paragraph requires the Magistrate in such a situation:
(a)to give reasons for declining to impose the recommended sentence;
(b)to describe the sentence that the Magistrate intends to impose; and
(c)to give reasons why the Magistrate’s proposed sentence is the appropriate sentence.
45. In summary, and presumably in recognition of the importance of the input that has been provided by the panel, paragraph 50 requires a Magistrate who rejects the panel’s recommendation to explain both the rejection of the panel's recommended sentence and the choice of the particular alternative sentence. Paragraph 50 is necessary because otherwise there would be no obligation on the Magistrate to explain the rejection of the panel’s recommended sentence.
46. However, I do not agree with the respondent’s submission that this interpretation of paragraph 50 permits the Practice Direction as a whole to be read as implying that if the Magistrate agrees with the panel's recommendation, there is no need for anyone to give reasons for imposing the recommended sentence.
47. Rather, it seems to me that a Magistrate who agrees with the panel’s recommendation nevertheless needs to outline his or her own reasons for regarding the recommended sentence as appropriate. If the panel’s reasons are clear and available, it may be sufficient for the Magistrate to refer to and explicitly adopt those reasons.
Did the Magistrate give reasons?
48. The Magistrate, having discussed the panel’s recommendation with the panel members to the extent necessary to agree on a split among the three offences of the total fine recommended, said: “I’ll formally make those orders.” Neither before nor afterwards did her Honour articulate any reasons for making the sentence orders, and it was in my view apparent from the processes leading up to the making of the orders that if she had, her reasons would simply have been that the orders were what had been recommended by the panel.
49. The respondent made submissions to the effect that reasons were provided in discussion between the panel and the Magistrate. Certainly it is true that a number of matters relevant to sentencing were discussed between the panel members and the Magistrate both before and after the panel members held their closed discussion.
50. A panel member explained the referral to Directions ACT that was attached to the six‑month good behaviour order imposed for the drink driving offence, saying that the panel wanted the appellant to develop strategies to maintain her abstinence from alcohol.
51. There was discussion among panel members about the respondent’s personal circumstances, including her commitment to rehabilitation; counsel for the respondent submitted that these and the prosecutor’s submissions and the pre-sentence report were all taken into account “in reaching the term of the good behaviour order”.
52. Counsel also noted that in advising the panel about the appropriate licence disqualification period for the drink-driving offence, her Honour had mentioned matters such as the respondent’s age, the gap between her earlier drink-driving offences and the one being dealt with in the circle sentencing process, the impact of a lengthy disqualification on a person of her age, and the importance of protecting the public until the respondent had had time to work through a genuine rehabilitation process. This is certainly true – but her Honour had prefaced those comments with “If I was dealing with this matter”, implying that she did not in fact see herself as “dealing with the matter”.
53. During the circle sentencing hearing, the respondent was asked by panel members about:
(a)what she had done about seeking counselling;
(b)issues arising from a past abusive relationship;
(c)whether her counselling was addressing alcohol abuse and whether she could control or limit her drinking;
(d)her understanding of the wider implications of her actions and the risk to her life and the lives of others;
(e)the fact that she had obtained a character reference from her employer without explaining the context and the possible effect of her offending on her employment,
(f)the possible consequences of drink-driving and the dangers of unpredictable behaviour caused by alcohol use.
54. She was reminded about the significance of communication with the panel involving “spiritual law, cultural law, emotional law, how we take care of each other” and that her drinking was not social but to remove some pain. The panel mentioned the significance of Aboriginal law and the need for the respondent to find her truth, to find where the pain is in her body and to become relieved of it so that she could heal, and that drugs and alcohol are only a symptom rather than the cause of problems.
55. There was also discussion about the mortality rates of Aboriginal people in Australia, and the respondent was told that the panel members would see the respondent “in community” and would be “looking at her”, and that her mother wanted her to sort out her life and survive and enjoy her life.
56. The panel emphasised that for her drug and alcohol issues the respondent would need help from Directions ACT rather than through her Employee Assistance Program, that she should have complied with the assessment panel’s recommendation to seek drug and alcohol counselling from Directions and that “when you’re given some direction from mob, do it. It’s that simple”. There was some discussion about the circumstances and consequences of the earlier drink-driving offences, and a reference to the panel having reviewed the PSR).
57. A panel member indicated a recommendation of a six-month good behaviour order and $1,000 fine, pointing at that the panel was conscious that “in mainstream court, it’s an immediate disqualification offence, suspension of licence”. The Magistrate explained that a disqualification period needed to be set, and one of the panel members said:
I want to make another point now. Sometimes people don’t understand that, you know, we have a responsibility to community but we also have a responsibility to mainstream community to uphold the principles of law and so with respect to that, that’s how our recommendations come about at times. Again, you know, can you hear what the magistrate’s saying in relation to that this charge comes with this penalty and that there’s a range between 12 months and five [years] of a suspended sentence.
58. Counsel for the respondent said that the respondent was not currently driving but hoped to be able to drive within about 10 months. The Magistrate said that in her view the respondent needed to be off the roads for a bit for the protection of the public, and told panel members that the maximum fine for each offence was $2,200.
59. I am satisfied that although it would be possible from the discussion outlined above to identify some of the matters that particularly influenced the panel members in their consideration of the sentence to be recommended, neither the members of the panel nor the Magistrate gave anything that could be described as reasons, even in the context of a “busy magistrate’s court” and certainly not in the context of a slightly more relaxed court. In particular, it is not possible from the transcript to work out what led the panel members to confirm their intention to recommend a fine that was considerably lower than had been suggested to them by the Magistrate.
Is a failure to provide reasons an error in the Galambany Court?
60. The respondent submitted that a failure by a Galambany Court Magistrate to provide reasons in the ordinary way “is not an error sufficient to provide an appeal ground.” This argument must be assessed against my finding that there is a requirement to give reasons for a sentence imposed through circle sentencing.
61. The respondent’s argument was that a failure to provide reasons is not an appellable error because of the aims of the Galambany Court, specifically the aims of:
(a)involving Aboriginal and Torres Strait Islanders in the sentencing process;
(b)increasing confidence in the sentencing process through a collaborative approach; and
(c)further reducing the barriers between the Magistrates Court and the Aboriginal and Torres Strait Islander communities.
62. The argument was not expanded significantly beyond this. However, particularly in the context of submissions about the “manifest inadequacy” appeal ground, counsel drew attention to a variety of other material about circle sentencing; that material emphasised the importance and value of circle sentencing processes, but also underscored the fact that circle sentencing is not a different sentencing process freed from the usual constraints and expectations placed on the sentencing court but an ordinary sentencing process enhanced for all participants (especially the sentencing court, the offender and sometimes the victim) by the involvement of members of the Aboriginal or Torres Strait Islander community and their engagement with the court and especially with the offender.
63. Counsel submitted (in relation to the manifest inadequacy ground but relevantly to this ground), that:
Circle sentencing places less weight on general deterrence and more weight on rehabilitation than conventional courts.
64. This submission was made in reliance on the comments of Gray J in R v Wanganeen[10] (Wanganeen) about the South Australian “sentencing conference” arrangements (section 9C of the Criminal Law (Sentencing) Act 1988 (SA)) under which the sentencing court “may ... take into consideration views expressed at the [sentencing conference]”. The relevant comments came at the end of an extended consideration by his Honour of issues arising in the sentencing of Aboriginal offenders, and should be considered in context. His Honour said:
10. The difficulties that may be associated with being Aboriginal and the extent to which those matters may inform sentencing generally, has been the subject of discussion by the courts. Considerations with respect to the Aboriginality of offenders were discussed in Tjami where Nyland J observed:
“ … In [Fernando], Wood J, of the Supreme Court of New South Wales, had the task of sentencing an Aboriginal man who had pleaded guilty to one count of malicious wounding with a knife. During submissions, counsel referred his Honour to numerous authorities, reports and papers which discussed the sentencing of Aboriginal offenders. Wood J gave a summary of the propositions emerging therefrom which I respectfully adopt (at 62):
‘The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group.
The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are [sic] treated by the law as occurrences of little moment.
While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.
“The propositions listed by Wood J do not, nor do they purport to, alter the sentencing process which is to be applied to Aboriginal offenders. Rather, the propositions reaffirm that the same sentencing process should apply to all offenders. This does not, however, mean that sentences are simply applied rigidly. Sentencing is a flexible process and there are, therefore, many considerations of aggravation and mitigation which the court may and should take into account when reaching a decision as to an appropriate sentence. In carrying out this exercise, a sentencing judge needs to be sensitive to the fact that there are particular mitigating factors which might apply more readily to Aboriginal offenders. The matters set out by Wood J are therefore a useful guide to be borne in mind in such cases.”
11 Similar comments were made by the High Court in Neal where Brennan J observed:
“The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. … ”
12 The above observations make clear that although the courts are mindful of matters relevant to sentencing which arise out of or are otherwise associated with the Aboriginality of an offender, the same sentencing principles apply to all offenders.
13 Although different sentencing principles may not be applied merely as a consequence of the Aboriginality of an offender, the courts and other agencies have recognised for some time that different sentencing strategies and approaches may be beneficial in the sentencing of Aboriginal offenders. A particular recognition of the difficulties faced by Aboriginal offenders in their interaction with the courts is reflected in the establishment of Indigenous sentencing courts. The first urban Indigenous sentencing court - the South Australian Nunga Court - was convened in South Australia on 1 June 1999. By 2006 almost each Australian jurisdiction had established some type of Indigenous justice practice.
...
19 Significantly, the convening of a sentencing conference pursuant to section 9C does not alter the process to be undertaken with respect to sentencing generally. In particular, the matters outlined in section 10 of the Sentencing Act are still relevant to the consideration of an appropriate sentence to be imposed. In this manner, the enactment of section 9C still aligns with the views of the Court expressed in Neil and Tjami as earlier discussed. However, the conference is significant as it allows the sentencing process to occur in a manner more suited to the cultural needs of Aboriginal offenders. These matters were discussed in the second reading speech as follows:
“Using a sentencing conference procedure does not change the matters to which a court must have regard when determining sentence under section 10 of the Criminal Law (Sentencing) Act 1998 or any other aspect of sentencing. It is just a way of informing the court and the defendant, and his or her community, about matters relevant to sentence in a more comprehensive and understandable way than is possible using standard procedures.”
20 The first section 9C sentencing conference to be convened in the Supreme Court was held in 2008. In the course of his sentencing remarks, Anderson J agreed with the Aboriginal justice officer's assessment of the purpose of the conference, namely:
“ … to allow an offender an opportunity to elaborate on the circumstances of the offending; to hear the stories from the victim and the victim's families on how the offence has impacted on them; to find out the issues relating to why an offender committed the offence; to put in place strategies to address those issues and to rehabilitate the offender so that person does not re-offend in the future. … ”
These objectives accord with the second reading speech and the manner in which the Nunga Courts were traditionally conducted. [citations omitted]
65. It is not accurate to cite Wanganeen as authority for the proposition that circle sentencing requires a different weighting of sentencing considerations from that which would otherwise be appropriate; different sentencing aims and considerations may always be weighted differently in different sentences, but there is to my knowledge no rule or principle that the weightings are necessarily different in all sentencing of Aboriginal and Torres Strait Islander offenders.
66. More significantly, the quoted extracts from Wanganeen confirm my view that circle sentencing as it was implemented in South Australia and as it is currently implemented in the ACT is not about handing over the sentencing power to a circle sentencing panel. It is about involving the Aboriginal and Torres Strait Islander community in that sentencing process in an intensive way so as to enhance the Magistrate’s capacity to sentence Aboriginal and Torres Strait Islander offenders in a way that is not only in accordance with law but is also culturally sensitive.
67. The circle sentencing process is intended to engage members of the Aboriginal and Torres Strait community in the sentencing of Aboriginal and Torres Strait Islander offenders. This should contribute to the engagement of that community with the justice system and, even more important perhaps for the individual offender, should ensure that the sentencing officer has a proper understanding of the offender’s background and circumstances, of the difficulties he or she has faced and perhaps of the ways in which he or she might be motivated to engage in serious rehabilitation.
68. On the other hand, the process clearly does not confer the sentencing discretion on the panel. It is explicit that the offender is sentenced by the Magistrate exercising his or her sentencing discretion, and the courts have made it clear in a succession of cases that Aboriginal and Torres Strait Islander offenders are not to be sentenced according to different principles – rather, they are to be sentenced having full regard to their own individual personal circumstances, including any aspect of those personal circumstances that reflect the particular experiences of Aboriginal and Torres Strait Islander people in Australian society. In Bugmy v The Queen[11] the High Court restated the requirement for Aboriginal offenders to be sentenced according to principles of individualised justice rather than by reference to their Aboriginality, while recognising that certain kinds of disadvantage may be more prevalent in Aboriginal communities (eg at [41]). For instance, where there is evidence that an offender’s life experiences have been affected by the fact that family members were part of the Stolen Generation, that experience must be recognised and accounted for in the offender’s sentencing, but there is no exemption from normal sentencing processes arising from the fact of that experience.
69. More specifically, a Magistrate in a circle sentencing process must exercise his or her own sentencing discretion, and the reasons for the exercise of that discretion in a particular way must be apparent to an observer to an appropriate degree – and in my view the appropriate degree will be greater the more the particular sentence departs from what might be regarded as the normal range of sentences for any similar offender who has committed a similar offence in similar circumstances.
70. The circle sentencing process does not relieve the Magistrate of the need to exercise the sentencing discretion for reasons that can be made apparent. If anything, it imposes a greater burden on the Magistrate than an ordinary sentencing process. The submission made by the respondent’s counsel that the Galambany Court arrangements required the Magistrate “to modify her judicial style and embark on a form of court-craft which is different to that of a traditional judicial officer” is probably correct, but the modifications required do not include simply abandoning the sentencing process to the panel. They may well require assisting the panel members themselves to articulate reasons for the recommended sentence that can be adopted by the Magistrate, or alternatively summarising the discussion of the panel members so that the summary is recognised by the panel as encapsulating its deliberations and reasons and also amounts to adequate reasons for a Magistrates Court sentence.
71. Ideally the Magistrate, possibly before but certainly after the panel has discussed the matter in private, should work with the panel to ensure that panel members understand the matters that need to be taken into account in sentencing and to ensure that his or her Honour understand the matters that the panel members see as significant in the sentencing. If there appears to be a significant gap between the panel’s recommendations and what the Magistrate sees as an appropriate sentence, then the Magistrate, ideally, would try to tease out the reasons for that gap. If the source of the difference can be identified, the disagreement may be able to be resolved with further discussion. In such a case, the Magistrate can then impose the sentence recommended by the panel, but it seems to me that the Magistrate needs at the very least either to adopt explicitly the reasoning by which the Magistrate and the panel reached agreement, or (perhaps preferably) to summarise, as the Magistrate’s reasons, the matters that have been relied on by the panel and the Magistrate in reaching that agreement.
72. If agreement cannot be reached, then paragraph 50 of the Practice Direction requires the Magistrate to explain why he or she has not sentenced in accordance with the panel’s recommendations as well as explaining why the sentence he or she has imposed is appropriate (the latter being an adequate description of the normal obligation of a sentencing officer to give reasons for sentence).
73. That process, and the two possible outcomes of it, are in my view not inconsistent with the aims of circle sentencing in improving the understanding possessed by the Aboriginal and Torres Strait Islander community and by the Magistrate of the complex processes of sentencing in general and sentencing Aboriginal or Torres Strait Islander offenders in particular.
74. Those aims do not permit, let alone require, the Magistrate’s sentencing discretion to be replaced by an obligation to act as a rubber stamp for a decision actually made by the panel without any requirement to apply proper sentencing principles.
75. I am satisfied that the combined effect of the Magistrates Court Act and the Practice Direction is:
(a)that circle sentencing involves a panel representing Aboriginal and Torres Strait Islander communities making a recommendation about sentence to the Magistrate; and
(b)that the Magistrate is then required to have regard to that recommendation (and indeed to explain any departure from it) in exercising the power to sentence according to the general law as to sentencing that is applicable in the ACT.
76. I am also satisfied that in this case, her Honour did not exercise her own sentencing discretion, but simply pronounced sentence to give effect to the recommendations of the panel.
77. I am satisfied that her Honour did not give adequate reasons for the sentences she imposed, but that this failure was simply a consequence of a more serious error, being the failure to exercise her sentencing discretion at all in imposing the sentences.
Ground (a) – manifest inadequacy
78. My conclusion that the sentences in this case were infected by error on the part of the Magistrate is not the end of the inquiry. If I were to conclude that despite the error, no different sentence should be imposed, I would dismiss the appeal (Keen v Tither[12] at [43], quoting Hayne J in AB v The Queen[13] at 160). Accordingly, it is necessary to examine the appropriateness of the sentences imposed in this case. However, in considering whether another sentence should be imposed, I am not required to consider only whether the challenged sentences were manifestly inadequate but simply whether a different sentence (not amounting merely to tinkering) should be imposed.
79. Although manifest inadequacy is not the only test, the submissions made in support of the “manifest inadequacy” appeal ground presumably put the arguments for different sentences to be imposed at their highest.
80. The appellant in written submissions drew attention to the following aspects of the offences and the respondent’s circumstances that were said to require a finding that the sentences were manifestly inadequate:
(a)that on the night in question, the respondent had been drinking at Oktoberfest, had found she had no money for a taxi fare, had been frightened by a man who then attempted to entice her to walk home with him, and had decided as a result to drive her car home;
(b)that although the respondent claimed to have ceased the use of alcohol, this had happened relatively recently (in January 2013) and that this was not the respondent’s first drink-driving offence;
(c)that the respondent had been found suitable for community service and periodic detention;
(d)that the respondent’s criminal history included two previous drink-driving offences (mentioned at [9] above) and some earlier minor offending for which no convictions had been recorded;
(e)that for her second drink-driving offence, a level 4 offence involving a blood alcohol level of 0.16, the respondent had been convicted and fined $600 and disqualified from driving for 12 months;
(f)that offences of drink-driving are prevalent, including among people who are otherwise of good character, that accordingly general deterrence is significant and good character may be less significant than in relation to some other types of offending;
(g)that there were present in the respondent’s case several of the aggravating features identified in the NSW Guideline Judgment about drink-driving offences (Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act 61 for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002)[14]), specifically:
(i)a high degree of intoxication;
(ii)erratic or aggressive driving;
(iii)a significant number of people put at risk;
(iv)no suggestion that the offender’s intended journey was short; and
(v)that the offender represented “a real and appreciable risk to the public and herself”;
(h)that the Guideline Judgment suggested that in the ordinary case of a second or subsequent high range offence, “any sentence of less severity than a community service order would generally be inappropriate”;
(i)that this was not an “ordinary case” having regard to the aggravating features identified, and that in such an aggravated case, some full-time imprisonment would generally be required;
(j)that the fines imposed represented in each case a small fraction of the maximum penalty (ranging from 25% of the maximum fine for a level 4 drink-driving offence down to roughly 10% of the maximum fine for the other two offences and, in relation to the speeding offence, barely a third of the amount that the offender would have been fined if that offence had been dealt with through a traffic infringement notice);
(k)that the three offences aggravated each other, in that the manner of driving reflected in the two less serious offences was what had drawn the attention of police to the drink-driving offence, and the two less serious offences were rendered more dangerous by the fact that they were committed by a heavily intoxicated driver;
(l)that the total fine of $1,000 “borders on trivial” having regard to the offender’s fortnightly wage of $2,110.
81. In response to these submissions, the respondent referred to extra-curial comments by Magistrate Madden in 2007 that “the offender can be given credit for participating in the Circle”[15] and submitted that the intensive nature of the circle sentencing process was a basis for imposing a less severe sentence on a defendant who has agreed to take part in it. The outline of the sentencing process given at [53] to [56] above does indicate that the respondent was subjected to more, and probably more affecting, personal pressure than is normally applied to a defendant in an ordinary sentencing process.
82. As already indicated, I do not need to make a finding that these sentences were manifestly inadequate in order to be able to uphold the appeal and resentence the respondent. Without finding manifest inadequacy, I am nevertheless satisfied that the sentences imposed in this case were inappropriately low and that different sentences should be imposed. I reach that conclusion having regard to the matters identified by the appellant and listed at [80] above, and even taking into account the fact that, as indicated by the transcript of the circle sentencing process in this case, the respondent was subjected to pressures from the elders in her community more substantial and, one might hope, more effective than those that generally arise from an ordinary sentencing process.
83. I do, however, reject the appellant’s submission that a fine equivalent to a week’s wages “borders on trivial”; this may be an accurate assessment for a person with a substantial disposable income, but a person earning little more than $50,000 a year does not in my view fit that description.
Conclusions
84. I am satisfied that the sentences in this case were infected by error in the Magistrate’s exercise of power.
85. I am further satisfied that, whether or not the sentences were manifestly inadequate, they were certainly significantly low and that other sentences would be appropriate.
86. This means that the appeal must be upheld and the respondent re-sentenced.
87. Having regard to the importance of the involvement of the Galambany Court in this sentencing process, I consider that this is a case in which, rather than re-sentencing, it would be desirable for me to remit the matter to the Galambany Court to re-sentence according to law. Unfortunately, s 219F(2) of the Magistrates Court Act does not appear to permit that course (at [5] above), and accordingly I must re-sentence the respondent, having regard not only to the matters before the Galambany Court but also to any changes in her circumstances since the original sentences were imposed.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
[1] (1988) 166 CLR 59
[2] [2004] ACTCA 21
[3] (2004) 205 ALR 346
[4] (2011) 6 ACTLR 18
[5] [2008] ACTSC 53
[6] [2009] ACTSC 42
[7] [2012] ACTSC 73
[8] [2013] ACTSC 7
[9] [2013] ACTSC 94
[10] [2010] SASC 237
[11] (2013) 249 CLR 571
[12] [2010] ACTSC 130
[13] (1999) 198 CLR 111
[14] (2004) 61 NSWLR 305
[15] The Circle Court in the ACT – an overview and its future (1 September 2007) Australasian Institute of Judicial Administration, 16
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