Tunks v Onorato
[2012] ACTSC 148
•6 July 2012
JASON TUNKS v STEPHEN ONORATO
[2012] ACTSC 148 (6 July 2012)
APPEAL – in general and right of appeal – sentence appeal – specific errors – irrelevant consideration – taking into account behaviour of accused in court on bail application – unjustified disparity between reductions for guilty plea – appropriateness of discount paramount.
APPEAL – in general and right of appeal – sentence appeal – manifest excess – accumulation – test to be applied – examination of the elements of culpability, not only conduct of the accused – sentence manifestly excessive.
JURISDICTION, PRACTICE AND PROCEDURE – general principles – judge’s discretion not bound by agreement between parties on facts or law – sentencer’s duty of fairness – requirement to disclose disagreement with counsel where disagreement may raise new issues.
CRIMINAL LAW – driving offences – Court ordered licence disqualification –
s 369 Criminal Code 2002 (ACT) – s 16 Crimes (Sentencing) Act 2005 (ACT) – words and phrases – “period” – whether a finite period – jurisdiction of Magistrates Court to impose indefinite period of disqualification – no jurisdiction outside s 65 Road Transport (General) Act 1999 (ACT).
Crimes (Sentencing) Act 2005 (ACT), ss 16, 71(1)
Criminal Code 2002 (ACT), ss 315(1), 318(2), 369
Magistrates Court Act 1930 (ACT), s 216, pt 3.10, div 3.10.2
Road Transport (Driver Licencing) Act 1999 (ACT), s 32(1)
Road Transport (General) Act 1999 (ACT), ss 64, 65
Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 109
Fox, R, and Frieberg, A, Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd ed, 1999)
Altham (1992) 62 A Crim R 126
Ex parte Thomas; Re Arnold (1966) 84 WN(NSW) 493
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Gardner v The Queen (2003) 39 MVR 308
Hei Hei v R (2009) 52 MVR 473
Hoare v The Queen (1989) 167 CLR 348
Malvaso v The Queen (1989) 168 CLR 227
Matruglio v Garrett [2012] ACTSC 110
Montes v Barkley Motors (Bodyworks) Pty Ltd [1968] Qd R 556
Pantorno v The Queen (1989) 166 CLR 466
Ruane (1978) 1 A Crim R 284
R v Chatfield [2012] ACTCA 32
R v Crowley [2004] NSWCCA 256
R v De Simoni (1981) 147 CLR 383
R v Harris (2007) 171 A Crim R 267
R v Lester (1975) 63 Cr App R 144
R v Melville (1956) 73 WN(NSW) 579
R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219
R v Walmsley [2011] ACTSC 173
Re a Bail Application by Schwalm [2011] ACTSC 153
Re Attorney-General’s Application (No 3 of 2002) (NSW) (2004) 61 NSWLR 305
Veen v The Queen (No 2) (1988) 164 CLR 465
Walsh v Giumelli [1975] WAR 114
Wilkins (1988) 38 A Crim R 445
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 14 of 2012
Judge: Refshauge J
Supreme Court of the ACT
Date: 6 July 2012
IN THE SUPREME COURT OF THE )
) No. SCA 14 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
JASON TUNKS
Appellant
v
STEPHEN ONORATO
Respondent
ORDER
Judge: Refshauge J
Date: 6 July 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The sentences and orders of the Magistrates Court made on 2 February 2012 are set aside.
In lieu, Mr Tunks is sentenced as follows:
(a) On the charge of dishonestly driving in a motor vehicle without consent (CC2011/8294), he is sentenced to 12 months imprisonment to commence on 26 August 2011.
(b) On the charge of going equipped for theft (CC2011/8295), he is sentenced to five months imprisonment to commence on 26 August 2011, that is to be wholly concurrent on the earlier sentence.
(c) On the charge of driving whilst disqualified (CC2011/8293), he is sentenced to four months imprisonment to commence on 26 June 2012, that is to be cumulative as to two months on the first sentence.
(d) On the charge of failing to stop (CC2011/8296), he is fined $300 with seven days to pay.
The sentence is suspended from today.
Mr Tunks is required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of two years with the following conditions:
(a) a probation condition that he be on probation subject to the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him;
(b) that he reside at the Community of the Celebration of the Christ at Queanbeyan, NSW, until he can, in accordance with condition (c), enter the Managed Accommodation Program of ACT Corrective Services;
(c) that he enter the Managed Accommodation Program as soon as a bed becomes available, and complete that program;
(d) that:
(i) when he completes the MAP program or is discharged from the program; or
(ii) if he is not able to reside at the Community of the Celebration of the Christ; or
(iii) the person delegated to supervise him, in conjunction with Fr Michael Cockayne, consider that it is appropriate or desirable that he change residence;
then he reside at a place directed by the delegate supervising him in consultation with Fr Michael Cockayne;
(e) that he not absent himself from his place of residence between 9 am and 6 pm each day;
(f) that he submit to the assessment of ACT Corrective Services Cognitive Self Change Program at the Canberra Men’s Centre Anger Management Program, and if he is assessed as suitable, remain in that program;
(g) that he obey all reasonable directions of the officer in charge of the programs until they are completed;
(h) that he submit, if necessary, to assessment for other programs or counselling as directed by the person delegated to supervise him, who, in determining his suitability for any programs, do so in consultation with Fr Michael Cockayne; and
(i) that he not operate a motor vehicle, be in the possession of any keys to a motor vehicle, or be in the driver’s seat of a motor vehicle.
Jason Tunks had an appalling childhood and, unsurprisingly, he has a long history of offending against the criminal law.
On 26 August 2011, he was driving a stolen motor vehicle when he was noticed by police who sought to intercept him. He did not stop and a chase ensued which lasted one and a half minutes and which ended when he was unable to negotiate an intersection. Fortunately, neither was the car damaged nor was he injured. He got out of the car, lay on the ground with his hands behind his back as if he were to be handcuffed. He was arrested. He was then interviewed.
Although initially denying that the vehicle was stolen, he soon admitted in the interview that not only did he know that it was stolen but that he himself had stolen it, using a tool that police found in the driver’s side door panel.
Inquiries by police showed that Mr Tunks had been issued with a New South Wales Learner’s Permit but that he had been disqualified on 15 March 2010 from holding or obtaining a licence for two years commencing on that date.
As a result, Mr Tunks was charged with four offences:
a. Dishonestly without consent driving a motor vehicle belonging to another person, a charge under s 318(2) (taking a motor vehicle without consent) of the Criminal Code 2002 (ACT), which attracts a maximum penalty of 500 penalty units, that is a fine of $55 000, or imprisonment for five years or both;
b.
In a place other than his home, having an article with intent to use it in the course of or in relation to taking a motor vehicle without consent contrary to s 315(1) (going equipped for theft) of the Criminal Code, which carries a maximum penalty of 300 penalty units, that is a fine of
$33 000, or three years imprisonment or both;
c. Being a first offender, driving whilst he was disqualified from holding a licence, an offence under s 32(1) (driving whilst disqualified) of the Road Transport (Driver Licensing) Act 1999 (ACT), for which the maximum penalty is 50 penalty units, that is a fine of $5 500, or imprisonment for six months or both; and
d. Failing to stop when requested by a police officer, prohibited by s 109 (failing to stop) of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), rendering Mr Tunks liable to a maximum penalty of 20 penalty units, that is a fine of $2 200.
He appeared in the Magistrates Court on 26 August 2011 and the matters were adjourned a number of times until 12 October 2011 when he entered pleas of guilty to all charges. For reasons not clear to me from the papers in this appeal, the proceedings were again adjourned a number of times until the sentencing proceedings commenced on 23 January 2012 and sentence was imposed on 2 February 2012. Mr Tunks was sentenced to a total of 21 months imprisonment and a fine of $300, for which he was given two years to pay. A non-parole period of 15 months was set.
Mr Tunks appealed from the sentences imposed on two of the charges, taking a motor vehicle without consent and going equipped for theft, which had resulted in a term of imprisonment. On 6 July 2012, I upheld the appeal and re-sentenced Mr Tunks with reasons to be delivered in due course. These are those reasons.
Jurisdiction
This Court has power under pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding appeals against sentences imposed in the Magistrates Court. I apply them in this case.
The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute another sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
On 16 February 2012, I directed under that section that Mr Tunks be remanded in custody pending the hearing and determination of the appeal.
The Appeal
Mr Tunks prepared and submitted the appeal himself. The grounds were “Severity of sentence. Ask [sic] for concurrent [sic] on 2011/8294 and 2011/8295.” These referred, respectively, to the Magistrates Court file numbers for the offences of taking a motor vehicle without consent and of going equipped for theft.
At the hearing of the appeal, Mr Tunks was represented by Ms C Carnell. She noted a couple of irregularities in the paperwork, which were of no moment, though it was appropriate for her to draw them to my attention.
More importantly, she sought to amend the Notice of Appeal to include an appeal against the sentence for the charge of driving whilst disqualified so as to challenge, in particular, the licence disqualification that had been imposed. Mr A Doig, who appeared for the respondent, very properly consented to that and I permitted the Notice of Appeal to be amended accordingly.
At my suggestion, Ms Carnell also sought to amend the Notice of Appeal also to challenge the penalty for the failing to stop charge. Mr Doig again very properly consented and I permitted that amendment.
The facts
The facts were in a relatively short compass.
Police on mobile patrol in the Canberra suburb of Wanniassa at about 3.45 am on 26 August 2011 saw two vehicles leave the car park of the Woolworths Caltex Service Station when they made u-turns and accelerated heavily as they did so, thus drawing the attention of police to them.
The police followed the vehicles, accelerating to do so, and noticed that the rear vehicle was a silver coloured Honda Prelude sedan. The police noted its number plate. The other vehicle was a Hyundai Excel sedan but police could not determine any other details.
The police activated their emergency lights and sirens in an attempt to stop the vehicles, which, however, continued to accelerate away heavily, well above the
60 km/h speed limit, obviously trying to evade police.
Both vehicles sped through a number of suburban streets until they came to the intersection of Castleton Crescent and Bugden Avenue, Gowrie, when the Honda sedan attempted to turn right into Bugden Avenue, but spun 180 degrees and came to stop in the front garden of a nearby house. The Hyundai sedan had turned left into Bugden Avenue and police lost sight of it. The pursuit had lasted about one and a half minutes, through suburban residential streets but, because of the time of night, there was, very fortunately, no traffic about. Police saw two people in the Honda sedan. The driver got out, lay face down on the ground and placed his hands in the small of his back as if waiting to be handcuffed. Police approached the driver, who was Mr Tunks, and advised him that he was under arrest for failing to stop the car when requested by police.
The passenger remained in the vehicle and, when questioned by police, denied knowing that the vehicle was stolen.
Mr Tunks was interviewed and, as noted above (at [3]), at first denied knowing that the vehicle was stolen but later admitted that he had stolen it, using a screwdriver which was in the driver’s side door panel.
Police confirmed that the vehicle was stolen. They also sighted a New South Wales Learner’s Permit in Mr Tunks’ name but noted from inquiries that Mr Tunks had been disqualified from holding or obtaining a driver licence by the Queanbeyan Local Court on 15 March 2010.
Mr Tunks was then taken to the ACT Watchouse. He appeared in the Magistrates Court later that day and was remanded in custody. As noted above, there were a number of adjournments and sentence was finally imposed on 2 February 2012.
Subjective Factors
From the material before the Magistrates Court, I can find the following matters about Mr Tunks. Mr Tunks is now 25 years old, the only child of his parent’s union. He does not know his biological father. His mother suffered mental illness and abused illicit drugs so he was placed in care a few weeks after his birth.
Initially, the foster care enabled him to live a relatively normal life, but, when he was 10, his foster mother was diagnosed with cancer and had to cease fostering him. Thereafter, Mr Tunks had an unstable existence, passing through four different foster families until, at 14, he returned to his original foster family for 12 months.
His behaviour, however, spiralled out of control, with truancy and criminal activity leading to placement in youth refuges and periods of incarceration in youth detention centres.
Mr Tunks also stated that he had been subject to sexual abuse by one of his carers while in foster care. He made a statement to police, but no charges appear ever to have been laid.
After release from detention, he was allocated his own flat but, because he was ordered to attend the Canberra Recovery Services (CRS) residential rehabilitation program, the lease was terminated. He entered the CRS program but left after about a month. He was offered crisis accommodation with the Community of the Celebration of the Christ (Celebration Community) led by Father Michael Cockayne, an Anglican priest.
It turns out that Mr Tunks’ mother was cared for by the Celebration Community when she was eight months pregnant and homeless with mental and intellectual disabilities.
Mr Tunks made contact with the Celebration Community first when he was 16 but later returned after a prison social worker sought help for him from the Community upon his discharge from custody. Father Michael would regularly meet him for coffee and a chat, trying to support him and, especially, for him to understand himself. It was at this time that the earlier connection of the Celebration Community with his mother was made.
Since then, he has had consistent support from Father Michael, who was in Court for him during the hearing of the appeal. While the Celebration Community is said always to be available to him, arrangements had been made just prior to sentencing for him to enter the Managed Accommodation Program (MAP) House, a program conducted by ACT Corrective Services which I have described in Re a Bail Application by Schwalm [2011] ACTSC 153 at [21]–[23] and R v Walmsley [2011] ACTSC 173 at [11]–[16].
Mr Tunks had little formal education, leaving school at age 14. His schooling had been marked with suspension for truancy and escalating cannabis use. He is said, however, to have completed his Year 10 certificate while in detention.
He has completed certificates in Responsible Service of Alcohol, Responsible Conduct of Gambling and the OH&S Green Card. He also managed to find and pay $700 to undertake the program to gain a forklift operator’s certificate.
Mr Tunks has had a variety of employment but finds it difficult to stay employed for long periods. He was employed as a car detailer for three months, leaving after an altercation with his employer. He then obtained work as a furniture removalist for six months, leaving to take up a carpentry apprenticeship. He found it difficult to maintain regular employment with tradespeople and so gave up the apprenticeship after 15 months.
In February 2011, he found employment on a construction site but became bored after three months as he said his employer was offering him little or no work.
Father Michael commented in his written reference:
Jason was most often working during this time but was unable to hold a job for very long because of difficulty in understanding what was required of him and the ‘boss’s’ difficulty in reading Jason’s emotion.
Father Michael expanded on this in oral evidence before the learned Sentencing Magistrate where he said:
HER HONOUR: How would you describe Jason’s behaviour and demeanour and social interaction when you first met up with him again about five or six years ago? --- When I first met him he was living basically on the streets in Canberra. His – he would call me from time to time, once, twice a week and I would come across to Canberra. We’d have a cup of coffee somewhere, whatever, and just sit and talk. The talk was pretty one way, Jason at that time found it very difficult to – to actually speak his – the things that were – were in his mind.
And have you noticed any change in his behaviour and his communication skills over that time? --- Very much, we’ve worked very much on his communication skills and he has difficulty in recognising emotion on faces and showing emotion on his own face, we work a lot on that, understanding that communication is not only with words, but with how we act and react.
Can you describe what sort of work you’ve personally done with him in improving his emotional and communication skills? --- Well he – he spends a lot of time with me each day. We – we will discuss situations, we’ll discuss situations that will arise during the day and he will say to me, you know, how – ‘Did I respond to that properly?’ ‘What was that person trying to say to me?’ ‘Did I understand what they were saying?’ We would discuss these things at great length to help – to – to help him to understand how people generally relate socially.
Father Michael said also:
[W]hen he first came to us he couldn’t handle his anger, he would have great bouts of anger. He couldn’t – couldn’t interact with other people, well there’s been a huge change in that. And also in – in – in wanting to drive cars fast, which is for him seems to be a release of tension and stress within himself.
We haven’t overcome that one yet? --- No.
No? --- But we’re working on it.
...
MR DAVIES: Could you describe his reaction to his actions – if that might have changed at all? --- Yes when – I’m beginning to – to see a pattern in – in his – he turns in on himself. I’m beginning to see and work on how to bring him out of that, but I think that’s a – a pointer to the fact that something’s going wrong. But when he has done this he’s immediately – all tension’s gone from him, he’s deflated, it’s just like – just like a – a balloon has burst and just gone down.
Did he have any appreciation, to your knowledge, or has he articulated any appreciation to you of the consequences for people of his actions? --- He does and his – in the beginning, five or six years ago, in common I think with a lot of street kids and so on he would have thought that a car was insured and it doesn’t hurt people to take it as it were. Now he realises that a car is important for people to get to work, it’s expensive, and that the – that the person that he takes that car from is as much damaged as an old lady who has her handbag stolen, which he would regard as a heinous offence.
He also noted:
He’s about 24 years of age now. And do alcohol or drugs play any factor in his life? --- Alcohol did in the past, but it doesn’t now. He went on a Naltrexone program for a while and has no problem with alcohol now. He’s also on anti-depressants which are part of the treatment for Asperger’s.
An issue relevant to these matters was raised in cross-examination of Father Michael as follows:
MS McMURRAY: Is there anything that might be available to him where he can drive but not on public roads, say for example is there anything to your knowledge that he could get involved in, in go kart racing or something like that that requires a licence for racing, but not for the road? --- We have begun to look at that, but – and I think that’s probably a very good alternative.
Okay. So when you say you’ve begun to look at that, how far away, what’s
---? --- It’s not so easy as it sounds, yes. But we have, and I have – I have a brother-in-law who has a farm who said ‘Look he could come and drive here if necessary’.Drive on a farm? --- M’mm.
Has he approached any go kart clubs or anything like that ---? --- No.
Mr Tunks started drinking alcohol and smoking cannabis aged 14 but reduced his cannabis use by the time he was 16 as “he did not like the affect [sic] of this substance had [sic] on him.” He says he stopped altogether when he moved in to the Celebration Community. He has used methylamphetamine (commonly known as “Ice”) since he was 19 but says he also ceased its use in 2007 and has not used it again. His alcohol use was somewhat problematic but, again, he says he reduced his consumption to social use every six months when he moved to the Celebration Community accommodation. When he was remanded in custody in August 2011, a urinalysis was negative for illicit substances, which supported this statement.
Mr Tunks’ mental health is problematic but the various reports tendered on sentence were not all consistent.
Father Michael, though not a professional mental health practitioner, has worked with mentally ill people on a day-to-day basis for many years. He wrote that “[f]rom the beginning it was obvious to me that Jason suffered from some mental/social disorder”.
A mental health report prepared by Dr Grahame George was also apparently before the learned Sentencing Magistrate. I take it was so because it was included in the schedule of documents produced from the Magistrates Court on the appeal, indicating that it had been on the Magistrates Court file. Regrettably, there does not seem to be a practice in that Court of marking as exhibits documents received in evidence on sentencing matters, so it is not always clear what has actually been the evidence before the Court.
Unfortunately, Mr Tunks became angry at the end of the interview with Dr George when he apparently considered it was ending too soon. He became frustrated and abused the psychiatrist who noted, however, that “[o]ther than this, he did not display any other hostility”.
Dr George expressed the following opinion:
Mr Tunks is a 24-year-old man who presents for psychiatric assessment in the context of current charges. His past history suggests that he may have suffered a psychotic illness at times of substance abuse in the past and it was also canvassed that he may have some expression of Asperger’s disorder in prior assessments.
In general, I would not necessarily diagnose him with Asperger’s Disorder. I believe that he has more of a mixed personality disorder with borderline, impulsive and antisocial traits. I do not believe that he suffers a mental illness, nor does he have mental impairment.
The fact that he has been maintained on the antidepressant, Paroxetine, for past anxiety and depression, I believe is more of an expression of his developmental life and the stresses he suffers in coping with life generally. This medication is probably prophylactic for him at the present time. I see no need for intervention of psychiatric services in his ongoing care.
A very detailed psychological report from NSW Department of Corrective Services was also apparently before the learned Sentencing Magistrate. The authors of that report also had access to a series of mental health and psychiatric reports, including a psychological report prepared for Mental Health ACT to which Dr George did seem to have access but probably only that one and not to the others, including the report from a psychiatrist at the Riverina Detention Centre. This detailed report was prepared in 2007 when Mr Tunks was 20.
That report recounted Mr Tunks’ history, generally consistently with that outlined above. The psychiatric history referred to depression, thoughts of suicide and self harm, anxiety, some degree of obsessive behaviour and behavioural problems. The obsessive behaviour had some features of autism spectrum symptoms. As recounted in the report:
[Mr Tunks was described as] often showing a keen interest in one specific activity or subject. For example, he would ask his first foster mother where she had travelled for the day and how many kilometres. He would then remember the last odometer reading on the car and add these new kilometres to the total kilometres travelled. A psychological report, dated 23rd of October 2011, by Phil Woodroffe, Senior Clinical Psychologist, NSW Department of Community Services, indicated that Mr Tunks experienced possible loss of contact with reality because Mr Tunks had been observed talking back to invisible persons.
Dr John Brennan, psychiatrist, Riverina Detention Centre, observed in July 2003 that Mr Tunks had a history of obsessive interests, including an obsessive pre-occupation with stealing cars. ... [W]hile at Quamby Remand Centre, Mr Tunks exhibited signs of magical thinking: walking within lines, counting stairs, or hitting a pool ball in a particular way. This was reported to be an effort to ensure that his foster mother visited him.
In 2005, ... Mr Tunks denied having any particular special or fixated interests. He stated that over the past 18 months to 2 years he engaged in following patterns to ensure that something will happen on a daily basis: He straightened his shoes and folded his clothes before going to bed; and he counted 64 steps and turned the television off on a certain channel. He did not identify any thoughts that he was trying to ward off with these behaviours.
This builds a picture, especially when it is added to what Dr George found, namely:
[W]hen he was home he tended to be obsessive about cleanliness. He was asked about this and he said he would tend to rinse plates off before putting them in the dishwasher. He did not indicate any other particular compulsive habits, although he said he would check doors and windows before sleeping.
This is one of the limits of self-report. None of the matters reported to Dr George would raise a question of obsession, but when linked to the other matters, they give a somewhat different picture.
The NSW report continued later:
Dr John Brennan, psychiatrist, Riverina Detention Centre, reported in July 2003, that Mr Tunks’ behavioural problems included lying, mood swings, and aggressive behaviour including physical aggression. Furthermore, he reported that Mr Tunks had a history of limited social rapport and poor social reasoning, difficulties handling interpersonal conflict with a high level of expressed anger. Dr Brennan gave him a provisional diagnosis of Asperger’s Disorder and prescribed risperidone.
It seems clear that Dr George did not have access to any of this material.
Psychometric testing disclosed the following:
a. Wide Range Achievement Test Version 4, testing basic academic skills of word reading, sentence comprehension, spelling, maths compilation and reading achievement: below average for many of these although his spelling ability was superior to his other abilities; his reading composite score places him in the low to below average range.
b. Wechsler Abbreviated Scale of Intelligence, yielding a verbal intelligence quotient (VIQ) score, performance intelligence quotient (PIQ) score and full scale intelligence quotient score (FSIQ): his PIQ score was superior to his VIQ score, indicating a strength in perceptual organisation, spatial visualisation, visual-motor coordination and abstract conceptualisation, but with a weakness in non-verbal fluid reasoning, which may impact on his ability to make judgments.
c. State-Trait Anger Expression Inventory-2, measuring state anger, trait anger and an anger expression index: he experiences relatively intense feelings of anger most of the time, is often impulsive and lacking in anger control and has a chronic desire to express his anger verbally; additionally, when he expresses his anger physically it is at a substantial economic and interpersonal cost to himself and he often feels he is treated unfairly by others.
d. Millon Clinical Multiaxial Inventory, a comprehensive personality questionnaire encompassing entrenched personality characteristics and more severe personality pathology as well as clinical symptoms in response to current circumstances: his style of responding was similar to “an individual who is crying out for help”, his personality style is characteristic of a person who has a dependent, avoidant and schizoid personality pattern, characteristic of a socially detached person with low self-esteem who tends to see others as more capable and more worthy, to be a follower rather than leader, who seek emotional support and protection from others and who often have trouble in understanding the feelings and motivations of others and may appear bland and apathetic.
e. Depression Anxiety Stress Scale, designed to measure depression, anxiety and stress (as the name suggests): Mr Tunks’ responses were clinically elevated states of all three.
f. Barrett Impulsivity Scale Version II – 2, measuring impulsivity: Mr Tunks’ highest problem area of impulsivity was attention, followed by motor impulsiveness, indicating a person who has difficulties in focussing on the current task and as to act on the spur of the moment.
g. Adult Asperger Assessment, to assess for Asperger’s Syndrome: Mr Tunks did not meet all the required criteria for Asperger’s Syndrome or High Functioning Autism but his responses did indicate that he has impaired social interactions.
Interestingly, the report authors also noted:
Mr Tunks appears to have suffered from low self-esteem from childhood. His first foster mother reported him to be very concerned about what other people thought of him. Furthermore, Mr Tunks states that he started stealing cars to obtain status within an antisocial peer group and finds it difficult to say ‘no’ to his peers.
The authors then made the following diagnosis:
The evidence supports diagnoses of Major Depressive Disorder, Recurrent, with Obsessive Features, and Dysthymic Disorder. Additional Diagnoses of Social Anxiety, Alcohol Dependence, and Poly-substance Abuse are warranted.
In 2005, Cassandra Richards diagnosed Mr Tunks with Dysthymic Disorder. Individuals with early-diagnosed Dysthymic Disorder are more likely to develop subsequent Major Depressive Episodes, and this can account for Mr Tunks’ current clinically significantly elevated Depression, Anxiety and Stress scores on the DASS.
A diagnosis of Social Anxiety accounts for Mr Tunks’ concern with other people’s opinions of him from childhood, his tendency to withdraw and isolate from other individuals, and his deficit in social interactions ... His drinking alone most nights after work may also be symptom of his Social Anxiety. Individuals with social anxiety also commonly experience co-morbid Alcohol and Drug abuse, Major Depression, and Dysthymia.
Presumably, the alcohol and drug abuse aspects are now irrelevant.
The Report authors recommended anti-depressants, Cognitive Behavioural Therapy and psychological care as appropriate treatment regimes.
Mr Tunks has a long and sorry criminal history. He has 68 convictions in 22 court appearances. Included in these offences are 17 offences involving the dishonest taking or using or stealing a motor vehicle, 12 offences involving the driving without a licence to do so, two offences of possessing articles intending to steal a motor vehicle and many traffic offences, including seven offences of dangerous or reckless or furious driving. He also has a number of dishonesty offences and some personal violence offences on his record. It does not paint a pretty picture.
It is to be noted, however, that there is a pattern which is somewhat confirmatory of what Father Michael said. He indicated that progress had been made with Mr Tunks over the time he had been working with him, that is since 2007. The pattern is demonstrated as follows:
Year Number of offences Number of motor vehicle theft offences 2002 13 2 2003 20 7 2004 7 2 2005* 4 2 2006 8 1 2007 0 0 2008 3 1 2009 11 0 2010 7 3 2011** 4 1 *in prison from 21 July 2005 to 20 January 2006.
**in prison from 11 November 2010 to 10 June 2011.
Clearly there has been some recent escalation of criminal activity but there is support for the opinion expressed that progress was being made, with a clear problem in 2009–2010. Father Michael, however, also referred to a change in his behaviour, noting “the behaviours that go around this [sic] have changed enormously. I see him – when he is not in gaol, I see him every day, and his behaviours have changed enormously.”
This analysis shows that there was a clear reduction in offending at the time he was connecting with the Celebration Community. More recently, however, his offending behaviour has increased but not to the levels of earlier times, though 2009–2010 was clearly problematic.
Sentencing submissions
Mr R Davies, who appeared for Mr Tunks before the learned Sentencing Magistrate, submitted that a term of actual imprisonment was inevitable. He submitted that his record made that inevitable, but that “the frequency [of his offences] appeared to be much higher during his teenage years than since”.
There was also a discussion of an apparent duplication of offending on Mr Tunks’ record. I do not need to recount this, save to say that on careful examination I was satisfied that charges of “Steal motor vehicle” and “Possess implements to enter/drive conveyance” which are recorded as having been dealt with by the Queanbeyan Local Court on 15 March 2010 are, in fact, incorrectly so recorded as they were almost certainly dealt with by the Goulburn Local Court on 17 November 2010. Mr A Doig, who appeared for the respondent in the appeal, very properly accepted that this was so. The error should be corrected in the record of Mr Tunks and as soon as possible and I invited the respondent to make appropriate representations about the issue.
Mr Davies noted that the motivation for the offences was psychological rather than because of the use of alcohol or drugs. Mr Tunks had not, for example, ever been convicted of a drink-driving offence. He accepted that there was no current diagnosis of Asperger’s Syndrome (though there had been an earlier provisional diagnosis to that effect) but that the obsessive trait in his personality was clearly a factor in his offending.
Mr Davies noted that, as at sentencing, Mr Tunks had been in custody for 151 days which should be taken into account as should the early plea of guilty, including the fact that he readily admitted to the offences.
He also submitted that his relative youth and the prospects of rehabilitation should be taken into account, especially “before he lapses into a state of being institutionalised as so often happens with people regularly appearing in the criminal justice system.”
He referred to the strong network supporting Mr Tunks and the availability of a place in the MAP House which the evidence showed would be beneficial for him.
He further submitted that the four offences were “part and parcel” of the one course of criminal conduct and that concurrent or substantially concurrent sentences should be imposed.
Finally, Mr Davies submitted that the inevitable licence disqualification should be as low as possible and not for an indefinite period as, he submitted, it would be in the community’s interests were he one day to obtain a licence to drive.
Ms McMurray, who appeared for the prosecution in the Magistrates Court, “conceded” that the offences were all part of the same course of criminal conduct and that some concurrency of sentence was appropriate.
Ms McMurray referred to what the High Court had said about an offender’s antecedent criminal history in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, submitting that Mr Tunks’ record showed continuing disobedience to the criminal law.
She submitted that the offence of taking a motor vehicle without consent was a serious one and the manner of driving was relevant as he was accelerating away from police as well as failing to stop. This, she submitted, placed the offending in the medium range of seriousness.
She submitted that there was no evidence of Asperger’s Syndrome but that there were relevant matters in the psychiatric material and that the diagnosis of major depression should to be taken into account in sentencing.
She did submit that there was no benefit in Mr Tunks becoming licenced as a driver because of the reasons given for his driving and that any disqualification had to be lengthy. She referred to the alternatives that had been put to Father Michael in cross-examination, giving Mr Tunks “an outlet for whatever problems are going on in his life, but not on the road”.
Ms McMurray also submitted that there was “no real evidence of rehabilitation” and that Mr Tunks had no respect for the property of others or for the police or road rules. The sentencing considerations, she submitted, were primarily personal deterrence and also general deterrence as she suggested car theft, disqualified driving and evading police put the public at risk.
She noted that Mr Tunks had already had community based orders, suspended sentences and full-time imprisonment but that these had not deterred him.
The Sentence
The learned Sentencing Magistrate adjourned to read the extensive material referred to and consider sentence.
On 2 February 2012, her Honour proceeded to sentence Mr Tunks. She outlined the offences, noting the full admissions made at the time of his arrest and that he had been remanded in custody since 26 August 2011. She noted the plea of guilty on 14 October 2011.
She then made a curious reference to a refusal of bail on 8 November 2011, saying:
On 8 November, following a review of the refusal of the grant of bail, the defendant became abusive towards the magistrate and threatened to rape her mother. I mention this is an example of the defendant’s contempt for authority and what it stands for in the community.
This outburst could have constituted the offence of contempt of court, a different offence for which Mr Tunks was not prosecuted. It may well be that to take this into account in sentencing here would offend the principles set out in R v De Simoni (1981) 147 CLR 383. One outburst when denied bail is hardly a sure evidentiary basis on which to base an assessment of Mr Tunks’ attitude to authority.
Her Honour then referred to Mr Tunks’ criminal record which she rightly described as “appalling”.
Her Honour next referred to what had been submitted on a bail application. She said:
In a bail application his solicitor – and I do not think this was you, Mr Davies, submitted at one time that the defendant had Asperger’s Syndrome and that it was a well-known fact that such people stole motor vehicles. An absolutely extraordinary submission, which was totally unhelpful because it was not based on any proven scientific evidence or fact.
It is not at all clear what the relevance of this was to the sentencing exercise. It had not been a submission made by Mr Davies; it was not before her Honour in evidence. There was no evidence that it was a submission made on specific instructions of Mr Tunks. It seems to me to be an irrelevant consideration.
Her Honour quoted from the report of Dr George. She made reference to the extensive and detailed psychological material, the provision of which and the need for it to be read was a reason why the sentencing had to be adjourned, but did not address the differences between it and the report of Dr George, especially as the former was based on extensive testing and detailed reference to a significant number of earlier psychiatric and psychological reports.
Her Honour referred to the Pre-Sentence Report and the contact that Mr Tunks had with the Celebration Community. She noted that he had no history of stable employment. She noted the availability of a place at the MAP House and the evidence of Father Michael. She found, however, that “the reality of the defendant’s behaviour is to the contrary” of Father Michael’s views. She noted that Mr Tunks had been convicted of 30 offences since 2006 which, she considered, was not a de-escalation of his offending behaviour. While true, it ignores what was happening before 2006 which was before his contact with the Celebration Community.
She took into account the early pleas of guilty, his youth, the prospects of rehabilitation and the extensive supports he has in the Celebration Community.
She rejected the suggestion that he had empathy with the victims of his offences and found no evidence of remorse and that he had no respect for court orders.
Her Honour quoted from the passage from Veen v The Queen (No 2) referred to by Ms McMurray, summarising it as saying that “if people do not learn from their past offences and keep on committing the same offences the court can show them no leniency.
Her Honour referred to the maximum penalties. She referred, with a curiously deprecatory comment, to what I had said in Cotter v Corvisy (2008) 1 ACTLR 299 about the likely imposition of a custodial sentence for disqualified driving offences.
She then imposed the following sentences:
a. for the offence of dishonestly without consent driving another’s motor vehicle (CC2011/8294), her Honour sentenced Mr Tunks to 15 months imprisonment to commence on 26 August 2011, reduced from 18 months to take account of his plea of guilty;
b. for the offence of driving whilst disqualified (CC2011/8293), she sentenced him to four months imprisonment to commence on 26 August 2011, to be wholly concurrent with the first sentence, reduced from six months to take account of the plea of guilty;
c.
for the offence of having on him an article for theft of a motor vehicle (CC2011/8295), she sentenced him to six months imprisonment reduced from eight months to take account of his plea of guilty and to commence on
26 November 2012, that is, to be wholly cumulative on the first sentence;
d. for the offence of failing to stop (CC2011/8296), a fine of $300 with two years to pay;
e. a non-parole period of 15 months to end on 25 November 2012; and
f. disqualification of his driving licence “until the court orders otherwise”.
The submissions on appeal
Ms Carnell provided detailed, comprehensive and helpful submissions. She submitted that the sentence imposed was manifestly excessive and drew attention to the following features which may have caused that:
a. though the offences all arose out of the same conduct and though both defence and prosecution submitted that there should be some concurrency, the sentence imposed included no concurrency in the sentences for the taking a motor vehicle without consent and the going equipped for theft offences, even though there was, she submitted a commonality of intention;
b. there were good prospects of rehabilitation reflected in the Pre-Sentence Report and the letter and oral evidence from Father Michael;
c. the licence disqualification was indefinite which gave Mr Tunks no real hope and the prosecution did not submit other than that a lengthy disqualification was necessary;
d. the references to the conduct both of Mr Tunks and of his legal representative at two respective bail hearings were not relevant to the sentence.
Mr Doig submitted that:
a. there did appear to be an error in the tendered criminal record (referred to above at [65]);
b. while the term of imprisonment imposed on Mr Tunks was the longest term to which he had been sentenced, it was, in the circumstances, not outside the proper range for the sentence;
c. there were discrepancies in the discount applied to the various sentences to take account of the plea of guilty: 17 percent in respect of the charge of dishonestly driving a motor vehicle without consent and 25 percent in respect of the charge of going equipped for theft;
d. it was proper for Mr Tunks to be charged with both offences and that some concurrency would comply with the totality principle, though there perhaps ought to be some cumulation to avoid the law being seen as, a “laughing stock”, a reference to what Lee CJ at CL said in Wilkins (1988) 38 A Crim R 445 at 449 (see also Carruthers J at 451);
e. the power to disqualify an offender from holding or obtaining a driver licence was to be found in s 369 of the Criminal Code (for offences against s 138 of the Criminal Code) and more generally s 64 of the Road Transport (General) Act 1999 (ACT) (the General Act), but the learned Sentencing Magistrate gave no reasons for the disqualification imposed, other than the criminal history of Mr Tunks. The submissions of Mr Davies made it clear that he had at least considered that an indefinite disqualification might be imposed;
f. in light of his criminal history, it was appropriate and accurate for her Honour to comment that “no penalty imposed to date has deterred him”;
g. the manner of driving had drawn the police officer’s attention to Mr Tunks and this was relevant; and
h. there was evidence that Mr Tunks had been accepted into the MAP House.
Consideration
There is no doubt that Mr Tunks had pleaded guilty to serious offences. The taking of a motor vehicle without consent not only deprives the owner of the use of what is often the most expensive purchase they make, after their home (if they own it), and for which they have often worked and saved hard, but also it may, as in this case, lead to police pursuits. Other members of the community are often then, as a result, put at risk and the vehicle may itself be damaged or even completed destroyed. Some of these matters may be charged as separate offences but they form the context in which to assess the seriousness of the offence. It is an offence for which an offender can expect to receive a sentence of imprisonment. That, of course, does not justify any sentence, for that actually imposed must be proportionate to the actual criminality. As the High Court said in Hoare v The Queen (1989) 167 CLR 348 at 354:
[A] basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (see Veen v The Queen [No 2] [at 472, 485–6, 490–1, 496) (emphasis in original).
In this case, there were matters that should be considered. Mr Tunks’ mental condition is relevant and clearly is a contributor to his offending behaviour. He was seeking some assistance through the efforts of Father Michael and, though they had not borne fruit to the desired level, especially shown in the relapse to similar offending in 2010, there had been a significant moderation, particularly of this offence in 2006–2009 and with only one such offence in 2011.
Of course, even one offence is unacceptable, but efforts to reform do not always result in an immediate cessation of offending behaviour; reduction of offending behaviour itself contributes to the protection of the community and should be recognised and encouraged without in any sense suggesting that any offending behaviour is approved by the courts.
The plea of guilty
A severe sentence was called for, moderated to take account of Mr Tunks’ mental condition and his efforts to rehabilitate, but the early admission of guilt, as reinforced by Mr Tunks’ behaviour when arrested deserves a significant discount in penalty. In my view, a reduction of 17 percent was insufficient, especially as there was a clear indication by her Honour that a larger discount of 25 percent was appropriate for the charge of going equipped for theft.
I appreciate that when short sentences are to be imposed, the tendency of courts to impose sentences in terms of months rather than weeks or days can lead to distortion of the sentencing discount, but the principle, which is that an appropriate discount is required must take precedence over any perceived “tidiness” in the determination of the length of the sentence.
It is, of course, common and appropriate to apply a degree of rounding to the sentence imposed after the application of a sentencing discount, but as noted in R v Chatfield [2012] ACTCA 32 at [17], a disparity beyond that rounding needs an explanation. None was here provided.
In my view, a discount of 25 percent was appropriate given the admissions made by Mr Tunks and the early plea of guilty.
The issue of accumulation
The second issue was whether the sentences on the charge of going equipped for theft and on the charge of taking a motor vehicle without consent should be cumulative or concurrent.
Both counsel submitted that there should be some degree of concurrency. The two offences were not merely contemporaneous but were part of the same enterprise: it was the use of the items with which Mr Tunks was equipped that gave him possession of the motor vehicle which he was driving.
Ms Carnell challenged the learned Sentencing Magistrate’s explanation that she made the sentence on the charge of going equipped for theft completely cumulative “because it showed a separate intent”.
Ms Carnell submitted that there was, in fact, only one intent, for Mr Tunks was equipped intending to steal only one car which was the one in which he was driving. That may be accepted, and this reinforces the point that the two offences were part of the same enterprise.
The general rule (as it is so described in the heading to the section), set out in
s 71(1) of the Crimes (Sentencing) Act 2005 (ACT), is that, unless directed otherwise, sentences are to be served concurrently.
Identifying the circumstances when a direction otherwise should be made is never easy. As R Fox and A Frieberg have noted, in Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd ed, 1999) at 715, “[f]or every case that can be cited to illustrate [the so-called ‘continuing episode’ or ‘one transaction’] rule, another can be found that provides an exception, or effectively negates it.”
Street CJ, with whom Owen and Herron JJ agreed, described in R v Melville (1956) 73 WN(NSW) 579 at 582–3 the test as usually applied:
On the whole, I think that the proper order would be to make the sentences ... concurrent, and not cumulative. They both arose out of the same enterprise. They were both so connected that I think they could be regarded as part of one incident, so that I think the proper order would be to vary the penalty by directing that those two sentences should be served concurrently.
See, to similar effect, Ruane (1978) 1 A Crim R 284 at 286 per Wallace J.
As an example, in R v Harris (2007) 171 A Crim R 267, the New South Wales Court of Criminal Appeal referred to a sentence for a series of two offences of break enter and steal on separate houses and an offence of taking and using a motor vehicle which had been the subject of concurrent sentences. A number of offences were asked to be taken into account, including possession of an implement for housebreaking, namely, a jemmy bar.
The Court considered that the sentences should not have been imposed so as to be served concurrently. Each “involve their own loss or damage ... each involves a different victim or group of victims and a separate exercise of an offender’s will” (at 275; [38]).
The Court, however, then added (at 275–6; [43]):
Of course at times there will be good reason for complete concurrency. One is where some offences are little more than incidents of, or incidental to, others. Thus had the possession of the jemmy been charged rather than placed on a Form 1, and there been no other evidence as to its use beyond what I [sic] have stated, it would not have been inappropriate to make that sentence wholly concurrent with the sentence for the offence in which it was used. Were an offender charged with break, enter and steal also charged with having custody of the same goods, it would be a rare case where anything other than concurrent sentences for those offences would be appropriate.
Hence, of course, this Court regularly imposes concurrent sentences for burglary and theft of property taken in the burglary.
It seems to me that this is the appropriate approach to the two charges of taking a motor vehicle without consent and going equipped for theft where the car is the one for which the equipment was used to steal. At the very least, the two sentences should have been substantially concurrent to recognise that they arose out of the same enterprise.
I recognise that the actual offence charged was driving the motor vehicle as opposed to the taking of it, a different offence from taking the motor vehicle without consent (an offence under s 318(1) of the Criminal Code). I note, however, that the penalties for both offences are identical. That difference makes the commonality somewhat less, but, in my view, does not alter the fact that they were so connected that they could be regarded as part of the one incident.
Instead of this approach, her Honour made the sentence for the driving whilst disqualified charge wholly concurrent with the sentence for the charge of driving the motor vehicle without consent. That is an oddity, unless done for reasons of compliance with the totality principle.
While there is a common act, driving, the elements of culpability are quite different: use of a stolen vehicle on the one hand and being a disqualified driver on the other with the disobedience to the orders of the Court as well: see Cotter v Corvisy. There seems to me no reason for much concurrency other than for reasons of totality, a principle not mentioned at all by her Honour.
In my view, this approach has led to a manifestly excessive sentence with which I should interfere.
The issue of agreement between counsel
I note that, before her Honour, both counsel submitted that there should be some concurrency in the sentences because, as Ms McMurray put it, “all [the] offences are part of ... the same course of criminal conduct and therefore are [sic] some concurrency in relation to the sentences.”
Mr Davies referred to the offences as “part and parcel of the one course of criminal conduct” and urged “concurrent sentences or substantial [sic] concurrent sentences.”
Of course, a sentencer is not bound by the submissions of counsel, as was made clear by Mason CJ and Brennan J (as his Honour then was) in Pantorno v The Queen (1989) 166 CLR 466 at 473. The Court’s discretion cannot be fettered by agreement between the parties as to the facts (Altham (1992) 62 A Crim R 126 at 127 per Hunt CJ at CL) or as to a plea-bargain (Malvaso v The Queen (1989) 168 CLR 227 at 233 per Mason CJ, Brennan and Gaudron JJ).
Nevertheless, there is a duty on a sentencer to act fairly and, in some circumstances, they may be required to disclose matters of concern or a view different to that of the parties. Thus, in Pantorno v The Queen, Mason CJ and Brennan J said (at 473):
If the judge determines the law to be different [from that agreed between counsel for the parties], he [sic] may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge’s departure from the proposition of law on which the case was conducted.
See also R v Lester (1975) 63 Cr App R 144; R v Crowley [2004] NSWCCA 256 at [46].
Her Honour should have raised with the parties her view that the difference in intent in the two offences which she identified meant that the usual approach to concurrency, that both counsel had submitted should be followed, was not applicable so that they could have made any submissions they wished.
The period of licence disqualification
Finally, there is the question of the disqualification of licence. The terms of her Honour’s order were “disqualified from driving until the court orders otherwise”.
Mr Doig noted that there were some sources of power for her Honour to make a disqualification order. In addition, I note that such an order can be made under
s 16 of the Crimes (Sentencing) Act.
Both s 369 of the Criminal Code and s 16 of the Crimes (Sentencing) Act refer to a disqualification for a “period that the court considers appropriate”. My initial reaction was to consider that this meant a finite period, a period of weeks, months or years. I am, however, not convinced that this is so.
There is authority to support the view that “period”, where used in these provisions, means a finite time, a period when the ending of the disqualification can be specified by a calendar date: Ex parte Thomas; Re Arnold (1966) 84 WN(NSW) 493 and Gardner v The Queen (2003) 39 MVR 308. These authorities are persuasive and consistent with my initial reaction to the provisions. They rely heavily, however, on the specific legislation there under consideration and that has some differences, perhaps significant ones, which may make the decisions distinguishable from this case.
Nevertheless, Gardner has been followed in Re Attorney-General’s Application (No 3 of 2002)(NSW) (2004) 61 NSWLR 305 at 313; [32]. Both cases were also followed more recently by the NSW Court of Criminal Appeal in Hei Hei v The Queen (2009) 52 MVR 473 at 479; [40], despite the fact that the legislative regime had by then been amended so that some of the statutory bases of the earlier decision appear to have been altered.
It may be that, as a matter of authority and principle, the term “period” should be given a meaning requiring a definite period to be specified. The existence of s 65 of the General Act may well support that view.
While not rejecting the results of those cases, I prefer, in the absence of specific argument before me, to rely on the following reasons.
The formulation her Honour used does not seem to me to be available. It assumes that there is a power in the court to “otherwise order”. There is no such power. As I pointed out in Matruglio v Garrett [2012] ACTSC 110 at [55], there was under previous legislation such arrangements but these have now been replaced by other provisions which do not give power for the court to impose such a disqualification.
The Magistrates Court is a creature of statute and, as such, must find a statutory power to exercise a jurisdiction: Walsh v Giumelli [1975] WAR 114 at 116; R v O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219 at 286; Montes v Barkley Motors (Bodyworks) Pty Ltd [1968] Qd R 556 at 559. In the absence of a statutory power for a court to make an order ending the disqualification, no disqualification in this form can properly be made.
The regime for indefinite disqualification is, however, available under s 65 of the General Act. That section relevantly provides:
(1)This section applies if –
(a)a person is disqualified (whether or not by court order) from holding or obtaining a driver licence because of being convicted, or found guilty, of an offence, or offences, against the road transport legislation or any other territory law; and
(b)the total period of disqualification (the compulsory disqualification period) is 12 months or more.
(2)If the court that convicts the person, or finds the person guilty, of an offence mentioned in subsection (1) is satisfied, after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that it is necessary in the public interest to do so, the court may disqualify the person from holding or obtaining a driver licence from the end of the compulsory disqualification period until the disqualification is set aside under subsection (3).
(3)If a court is satisfied, on application by a person who is disqualified under subsection (2) and after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that the disqualification is no longer necessary in the public interest, it may set the disqualification aside.
(4)An application under subsection (3) must be given to the registrar of the court with an affidavit of the applicant setting out the grounds of the application.
(5)The respondents to an application are the road transport authority and the chief police officer.
...
(7)For subsection (2) or (3), the court must consider the following matters:
(a)the total period for which the person concerned is, or has been, disqualified from holding or obtaining a driver licence;
(b)the person’s history of offences (including offences for which infringement notices were served on the person) –
(i)against the road transport legislation or a law of another jurisdiction corresponding to it (or to part of it); or
(ii)against another law of any jurisdiction in relation to the use of motor vehicles;
(c)any relevant rehabilitation or remedial action undertaken, or to be undertaken, by the person;
(d)the risk to the safety of other road users.
As can be seen, this is a comprehensive regime, for not only an extended disqualification until further court order, but also with a detailed provision for the setting aside of the disqualification (in s 65(3), (4) and (5)).
This was not a power that her Honour used because:
a. the compulsory disqualification period (as defined) was not, as required, 12 months or more; the order her Honour made could, in fact, have been ended in a period of time less than 12 months;
b. her Honour did not give any indication of considering the matters required to be considered in s 65(7), especially (a) and (d);
c. her Honour did not explain that this was the provision she was utilising.
Accordingly, the order was made without jurisdiction and must be set aside.
It is difficult to see how s 65 can sensibly be used when there is no mandatory disqualification. It would require the sentencer to impose a finite disqualification of longer than 12 months and then, having been satisfied that this is the appropriate period, make an order under the section that, nevertheless, it should be extended indefinitely “until the court otherwise orders”. That is internally inconsistent. In cases of a mandatory disqualification, that is easy. In other cases, it seems to me to be quite problematic. It may be a case for consideration of reform.
Having found that the disqualification imposed by her Honour was without power, I need to impose a fresh disqualification.
Re-Sentencing
Having regard to the objective circumstances of the offences, Mr Tunks subjective circumstances, especially his mental challenges and his efforts at rehabilitation, the sentences proposed by her Honour before reducing them for the plea of guilty discount seem to me to be an appropriate starting point. The discount, the accumulation of the sentences, the disqualification period and his release, however, all need adjustment to take account of these matters.
Given that the sentences are imposed on multiple offences, I have carefully considered the length of each sentence to ensure that when there are overlapping common elements between any of the offences, Mr Tunks is not punished twice.
I have also considered whether the sentences should be partly or wholly concurrent because they are part of the same enterprise.
I have then reviewed the length of the total term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but not more than that, that the total sentence is not crushing and that it leaves open the realistic prospect of reform and the hope for the achievement of Mr Tunks’ goals when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
I also considered that there was no time now for the imposition of a non-parole period before Mr Tunks is released, he having now served more than 10 months of the sentence, so I proposed to suspend the sentence and have his post-release managed by the mandatory good behaviour order.
Accordingly, I upheld the appeal and re-sentenced Mr Tunks as follows:
a. On the charge of dishonestly driving in a motor vehicle without consent, I sentenced him to 12 months imprisonment, reduced from 18 months imprisonment to take account of his plea of guilty, to commence on 26 August 2011.
b. On the charge of going equipped for theft, I sentenced him to five months imprisonment, reduced from eight months imprisonment to take into account his plea of guilty, to commence on 26 August 2011. That is to be wholly concurrent on the earlier sentence.
c. On the charge of driving whilst disqualified, I sentenced him to four months imprisonment, reduced from six months to take account of his plea of guilty, and to commence on 26 June 2012. That is to be cumulative as to two months on the first sentence.
d. On the charge of failing to stop, I fined him $300 with seven days to pay.
e. I suspended the sentence with a good behaviour order and imposed a number of detailed conditions designed to encourage his ongoing rehabilitation.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 16 October 2012
Counsel for the applicant: Ms C Carnell
Solicitor for the applicant: Kim Bolas Criminal Lawyer
Counsel for the respondent: Mr A Doig
Solicitor for the respondent: Director of Public Prosecutions (ACT)
Date of hearing: 3, 4, 6 July 2012
Date of judgment: 6 July 2012
3
12
5