Jeffrey Thomas Hogan v Arthur Ross Woodyatt [1986] ACTSC 34 (12 May 1986)

SUPREME COURT OF THE ACT

JEFFREY THOMAS HOGAN v. ARTHUR ROSS WOODYATT
S.C. Nos. 583, 659-662 of 1985
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Criminal Law - Appeal against severity of sentence - Appellant having made substantial progress toward rehabilitation - Enactment of provisions relating to Community Service Orders since sentences imposed in Court of Petty Sessions.

Crimes Act 199 (N.S.W.) in its application to the Territory Part XV A.

R. v. Snell and McGregor, ex parte Attorney-General, (1979) QdR 47

HEARING

CANBERRA
12:5:1986

ORDER

The appeal in respect of the sentence imposed as a result of the conviction of the offence against s. 34(2) of the Motor Traffic (Alcohol & Drugs) Ordinance 1977 be allowed and that in lieu of the sentence of imprisonment imposed by the learned Magistrate in respect of that offence there be substituted a direction that the appellant perform unpaid work for 156 hours. The learned Magistrate's direction that the appellant be disqualified from holding a licence unless or until the Court so orders is confirmed.

The fine imposed in respect of the offence against s. 51(1) of the Motor Traffic Ordinance 1936 be confirmed but that the appellant be allowed one month to pay that fine.

The fine imposed in respect of the offence against s. 165(a) of the Motor Traffic Ordinance 1936 be confirmed but that the appellant be allowed two months to pay that fine.

The fine imposed in respect of the offence against s. 181 of the Motor Traffic Ordinance 1936 be confirmed but that the appellant be allowed three months to pay that fine.

The fine imposed in respect of the offence against s. 203(1) of the Motor Traffic Ordinance 1936 be confirmed but that the appellant be allowed four months to pay that fine.

DECISION

These are appeals against sentence.

2. On 12 June 1985 Jeffrey Thomas Hogan (the appellant) was dealt with in the Court of Petty Sessions on five charges arising out of his having ridden a motorcycle on 5 March 1985, his driving licence having been cancelled on 17 May 1984. He pleaded guilty to and was convicted in respect of all five charges.

3. The most serious offence, riding the motorcycle while his licence was cancelled, was in breach of s.34(2)(b) of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 and rendered him liable to a fine not exceeding $2,000 or imprisonment for a period not exceeding 12 months or both such fine and imprisonment. He was sentenced to 12 months imprisonment with hard labour but an order was made that he should be released after serving four months imprisonment on giving security self in the sum of $200 to be of good behaviour for two years from the date of conviction, to be subject to supervision on probation under an officer appointed by the Director of Welfare and to obey all reasonable directions of that officer.

4. The remaining charges related to breaches of provisions of the Motor Traffic Ordinance 1936. In contravention of s.51(1) of that Ordinance the appellant rode the motorcycle without there being in force a third party policy in relation to its use; in contravention of s.165(a) he rode the motorcycle while it was unregistered; in contravention of s.181 he rode the motorcycle while it did not comply with the requirements prescribed by Part I of the Second Schedule to the Ordinance in that it had a smooth tyre and in contravention of s.203(1) he stated a false name and address when required to give his name and address to the investigating police officer.

5. Because it was his second offence against s.51(1) of the Motor Traffic Ordinance 1936 he became liable to a fine of $1,000 or six months imprisonment or both such fine and imprisonment. He was fined $250 in default 10 days imprisonment with hard labour. Each of the other three convictions rendered him liable to a fine of $500. On each of the charges of riding an unregistered motor vehicle and stating a false name and address he was also fined $250 in default 10 days imprisonment with hard labour while on the remaining charge he was fined $100 in default imprisonment for four days with hard labour. No time was allowed to pay any of the fines.

6. The appellant has a substantial record of traffic offences. On 25 June 1976 he was convicted of driving an unregistered motor vehicle, of driving a vehicle in respect of which there was no third party policy in force and of being an unlicensed driver. In respect of each of those convictions he was fined $10 and ordered to pay costs of $3.50. On 3 August 1978 he was convicted of driving with the prescribed content of alcohol (.089) and fined $200, his licence being suspended for three months. On 13 August 1979 he was convicted of speeding, fined $50 and ordered to pay costs of $5.00. On 11 January 1980 he was again convicted of speeding, fined $55 and ordered to pay costs of $5.00. On the same day he was convicted of driving without a seat belt, fined $20 and ordered to pay costs, again in the sum of $5.00. On 31 March 1980 he was again convicted of driving with more than the prescribed content of alcohol in his blood, fined $400 and had his licence cancelled. It appeared from the material placed before the learned Magistrate whose sentences are appealed from that the second offence of driving with more than the prescribed content of alcohol involved a reading of .10. His licence was restored on 20 July 1981. Finally, on 17 May 1984, he was again convicted of driving with more than the prescribed content of alcohol in his blood (this time with a figure in the range between .130 and .140). He was sentenced to imprisonment for three months but the sentence was suspended upon his entering into a recognizance self in the sum of $500 to be of good behaviour for a period of 12 months. In addition he was fined $750 and his licence was cancelled. He thus committed the offences with which I am concerned in the period during which he had bound himself to be of good behaviour.

7. In 1974 the appellant was dealt with in the Canberra Children's Court in respect of four offences of stealing committed before he turned 13. He was discharged upon his entering into a recognizance to be of good behaviour for 12 months. When aged just under 15 he was dealt with in the same court on a charge of breaking entering and stealing. He was released on probation. When aged 16 he was fined $100 at Bathurst on a charge of possessing Indian hemp. On 24 May 1979 in the Canberra Children's Court he was ordered to pay a penalty of $400 on a charge of having implements of housebreaking in his possession while in the same Court on 18 October 1979 he was dealt with on three charges of larceny committed in the five months before he turned 18. In respect of two of the charges he was ordered to enter into a recognizance to be of good behaviour for 12 months and on the third charge was ordered to pay a penalty of $50. On 26 May 1983 he was dealt with on two charges of possessing cannabis resin. In respect of the first he was sentenced to six months imprisonment with hard labour, the sentence being suspended upon his entering into a recognizance conditioned that he be of good behaviour for a period of two years and pay a penalty of $1,000. On the second charge he was sentenced to the rising of the Court.

8. The respondent police officer gave brief evidence of the offences before the learned Magistrate. At about 11.20 a.m. on Wednesday, 5 March 1985 he was on mobile patrol in Tharwa Drive when he stopped the appellant, then riding motorcycle registered number ACT 23050 in a southerly direction. He asked the appellant whether the motorcycle was currently registered. The appellant replied, "I think so, it is not my motorcycle". He was then asked for his licence and replied that it was a permit which he did not have with him. Asked his name and date of birth he gave a false name, his correct date of birth and a false address. The respondent noted that the rear tyre of the motorcycle was smooth. The appellant could give no reason for riding with a tyre in that condition. He was conveyed back to the Tuggeranong Police Station and there stated his correct name and address. Asked whether he had a reason for stating a false name and address he replied that he did not have a permit and he admitted that he was a disqualified driver. Enquiries revealed the cancellation of his licence on 17 May 1984. He could give no reason for the offences except that he was "just riding".

9. A copy of the welfare report which had been prepared for use in connection with the hearing on 17 May 1984 of the charge then dealt with of driving with more than the prescribed content of alcohol was tendered before the learned Magistrate as was a report by Dr Gupta. So, too, was a certificate of attendance at an alcoholic education programme conducted by the Alcohol & Drug Problems Association of the Australian Capital Territory. The appellant was not called to give evidence before the learned Magistrate nor was any oral evidence tendered on his behalf. Submissions were, of course, made.

10. The learned Magistrate was told, in submissions put on his behalf, that the offences arose simply because the appellant was visiting a friend who lived in Tuggeranong Valley. The motorcycle was at the friend's residence. The submission went on to say that the appellant had been unemployed since his conviction in May 1984 and that the handicap of not having a licence had severely restricted him in his ability to find employment. He was described as an untrained, unskilled labourer. No reason was given for riding the motorcycle except that it was the culmination of several months without employment during which he had become very depressed and the excruciating boredom of unemployment had forced him to take the foolhardy step of riding while his licence was cancelled. The appellant's legal representative pleaded for another chance and pointed out particularly that in the week before the hearing the appellant had finally succeeded in obtaining employment as a labourer on a job which was expected to run for another five or six months.

11. Commenting upon the submission the learned Magistrate said:

"You say that he rode the bike on this

occasion because of the depression of
unemployment?"

On being assured that that was so, his Worship said:-

"That is strange because Dr Gupta says 'I
could not find any evidence of depression or
psychosis'."

12. Before passing sentence the learned Magistrate made some comments. He said, inter alia,

". . . there is no good reason why he was riding
this cycle on this particular occasion. In
fact, there was no reason at all. He has
totally ignored the Court's orders as far as
non-driving is concerned and as I have
already mentioned, of course, has committed
this offence . . . whilst on a bond for another
offence against the Motor Traffic (Alcohol &
Drugs) Ordinance. I suppose it is hardly
worth mentioning, as far as that particular
order is concerned, he has appeared before
the Court three times for being over .08 - in
1978, 1980 and the last one of course was the
one I referred to in May 1984. I am asked to
give him one more chance. The record shows,
of course, that he has been given chance
after chance after chance, the last one being
17 May 1984 and that one also has been
abused. . . . I believe that he has had more
chances than he deserves and I find little
point in Courts cancelling people's licences
if these persons are going to hop on their
bikes or get into their cars and drive.
There is no point in it."

13. As so frequently happens in cases of this kind, the appellant's circumstances had changed quite radically before his appeal came on to be heard on 26 March 1986. As well the appellant gave evidence. It also became apparent that the appellant had been stopped by the respondent during the course of a police check being carried out in respect of possible acts of arson and not because the appellant's manner of riding attracted the respondent's attention.

14. When the appellant gave evidence he told of his employment as a builder's labourer. He was earning, he said, $320 per week nett. His commitments were for rent, board, food, clothing and electricity. He described his employment history. He said of his job which at that time he had held for eight months,

"It is a very good job. I have not had a job
like this before. I like the job very much.
It is something that I want to do and stick
to. It has changed my attitude towards life
since I have had this job and I am very
pleased with what I am doing and very happy
with the position I hold."

Compared with tyre fitting in which he had earlier engaged and in which he did not see any future it was a much better job. He went on to say that he thought he might get somewhere, "a bit further than a labourer one day". He said,

"I would just like to say that the importance
of this job to me is that it is a very good
job. I wish to hold this position. I would
not like to go back onto the dole, being
unemployed again with no money. A job is
very important to me."

He said that he had worked for about three to four weeks with the drainers with whom he had commenced employment before he was dealt with on the five charges.

15. He described the offence:-

"I was just feeling bored, your Honour. I
had a friend, you know, he had a trailbike.
I have been riding bikes ever since I was a
young boy, 9, 10 years old. I was just
feeling bored, down and out, on the dole and
I felt like going out in the bush, you know,
in the bush having a bit of a ride around on
the bike again. I had not been on the bike
for many years and I just felt down and out
and felt like going for a bit of a blast on
the bike out in the bush."

He said, and I accept, that he had not ridden a bike except on that one occasion since his licence was cancelled. I took into account his record but was nevertheless impressed by the appellant as a witness of truth. He gave evidence concerning the offences relating to driving with more than the prescribed content of alcohol. Nothing in his evidence suggested to me that he has had or has an alcohol problem and it appears that this opinion is shared by Dr Frank Slater who he said had counselled him on a number of occasions and who has frequently given evidence as an expert on matters relating to the consumption of alcohol and the problems of persons who consume alcohol to excess.

16. The appellant said, inter alia,

"The last twelve months changed my opinion,
outlook. I just want to keep working, become
an honest citizen, do good, get somewhere in
life. . . . .Well, I just think, you know, I
deserve a second chance, maybe. I am not
into this - I do not want to get myself into
any more strife or anything. I just - settle
right down, I think, not as crazy as I used
to be, and you know, I think I have settled
down a hell of a lot. . . . (The offence) was a
very foolish mistake. I know it was - I did
wrong. I should not have been out there on
the bike and I am very sorry for what I have
done, but it is done and I am just very sorry
for the offence I committed. I know I should
not have been out there on the bike and just
something I done and very stupid."

17. Gregory Bruce Munro, who is a friend of the appellant but who is also a leading hand with the appellant's employer having responsibility for the appellant's work, described him as a conscientious worker who can be left alone at times. He had known the appellant for six years. He worked with him in a tyre fitting factory, work which he described as "not much fun for anybody, low wages and dismal hours". He said that the appellant had picked up incredibly since he started work in his present position. The problem he appears to have had with cannabis had stopped and his drinking had dropped. He estimated the appellant's consumption of alcohol at six cans a fortnight.

18. Counsel for the appellant submitted that account should be taken of the provisions of s.17A of the Crimes Act 1914 and said that I could not be satisfied that no sentence other than imprisonment was appropriate in all the circumstances of the case. He submitted that the most appropriate course which the Court should adopt was to make use of the provisions of s.556G of the Crimes Act 1900 of the State of New South Wales in its application to the Territory and make a community service order against the appellant. Following this submission an adjournment was granted so that the appellant might be assessed for his suitability in respect of a community service order. A report has now come to hand which assesses him as suitable.

19. I think a real consideration in this matter is that there is now available to the Court a genuine alternative to imprisonment, a community service order. That alternative was not available to the learned Magistrate when he sentenced the appellant. Additionally, I am satisfied that the appellant has made very considerable progress in his attempts to lead a decent law abiding life. These attempts relate not only to traffic offences but also to any difficulties he has had in relation to alcohol and cannabis. I note that his last offence in relation to property took place when he was still amenable to the jurisdiction of the Children's Court nearly seven years ago.

20. In R. v. Snell and McGregor, ex parte Attorney-General (1979) QdR. 47, Dunn J, giving the judgment of the Court of Criminal Appeal (Wanstall CJ, Lucas and Dunn JJ) said at p 49:-

"In R. V.Paul (unreported - CA No.5 of
1977) I pointed out that there may be
occasions upon which, if the Court of
Criminal Appeal gives effect to the punitive
and deterrent aspects of the sentencing
process by substituting a sentence of
imprisonment for a probation order, the
sentence may not only punish and deter. It
may destroy partial rehabilitation
demonstrated by evidence to have taken
place. I also pointed out that sometimes, in
the interests of society, such a destructive
consequence must be accepted. The other
members of the Court concurred in the
observations which I made. . . .
In this case, to my mind, bearing in mind the
assessment of the respondents made by the
learned judge and bearing in mind their
recent conduct and present promise, the
destructive consequence would be
unacceptable."

21. I think the same approach appropriate here, particularly since I am satisfied that the appellant has gone far along the road to rehabilitation. At the same time I point out that each appeal to this Court against severity of sentence imposed by the Magistrates' Court must be dealt with on its merits. Not every case where an appellant against severity of sentence imposed by the Magistrates' Court has made some progress towards rehabilitation will warrant an appeal's being allowed. But where, as here, that past rehabilitation is combined with another proper alternative not available to the Magistrate at the time of sentencing, the destructive consequence of dismissing the appeal would, to use the words of Dunn J quoted above, be unacceptable.

22. It is also to be noted that the learned Magistrate seems to have misapprehended the effect of Dr Gupta's report. Dr Gupta did not say that he could detect no signs of depression. He said only that he could detect "no signs of depressive illness". Depression may be present when depressive illness is not and, of course, temporary depression from which the appellant apparently suffered is understandable. It may be that in the circumstances the learned Magistrate took a less favourable view of the appellant than was properly available.

23. Finally, it is to be noted that the fines imposed, totalling $850, would not have been paid had the sentences imposed by the learned Magistrate been executed. They would have been "worked out".

24. I propose, therefore, to allow the appeal and in lieu of the sentence of imprisonment direct the appellant to perform unpaid work for 156 hours.

25. Jeffrey Thomas Hogan, the effect of the Community Service Order which I make in your case will be that you will be required to work under supervision in community service for a period totalling 156 hours. You will be required to comply with the directions of an authorised officer with regard to the performance of work pursuant to the order. You will be required to perform the work in a satisfactory manner and to comply with any reasonable request of a supervisor while performing work pursuant to the order.

26. If you, without reasonable excuse, refuse or fail to-

(a) comply with a community service order;

(b) inform an authorized officer of any change in your
address;

(c) comply with the directions of an authorized
officer with regard to the performance of work
pursuant to a community service order;

(d) perform work pursuant to a community service order
in a satisfactory manner; or

(e) comply with any reasonable request of a supervisor
while performing work pursuant to a community
service order,

you will be guilty of an offence and will be dealt with as follows:-

1. An authorized officer may lay an information
before a Magistrate in respect of such an offence.

2. The Magistrate may cause a summons to issue
requiring you to appear at a time and place to be
fixed before this Court to answer the information
and be further dealt with according to law. This
Court may then make any one or more of the
following orders:-

(a) An order extending the period during which
the relevant community service order is to
remain in force;

(b) an order varying the relevant community
service order by increasing the number of
hours for which you are required to perform
unpaid work pursuant to the community service
order;

(c) an order requiring you to perform work
pursuant to the relevant community service
order other than the work you have been
performing;

(d) an order revoking the relevant community
service order;

(e) an order that you pay a penalty not exceeding
$1,000.

27. If the community service order is revoked by order of this Court you may be dealt with as though you were then before the Court to be dealt with on the charge of driving while your licence was cancelled. In other words, the Court will look afresh at the offence but have regard to any work you will have performed pursuant to the community service order.

28. I confirm the fines imposed in respect of each of the other four offences but allow an appropriate period for the payment of those fines.

29. Accordingly, I order that:-

(a) The appeal in respect of the sentence imposed as a
result of the conviction of the offence against
s.34(2) of the Motor Traffic (Alcohol & Drugs)
Ordinance 1977 be allowed and that in lieu of the
sentence of imprisonment imposed by the learned
Magistrate in respect of that offence there be
substituted a direction that the appellant perform
unpaid work for 156 hours. The learned
Magistrate's direction that the appellant be
disqualified from holding a licence unless or
until the Court so orders is confirmed.

(b) The fine imposed in respect of the offence against
s.51n1) of the Motor Traffic Ordinance 1936 be
confirmed but that the appellant be allowed one
month to pay that fine.

(c) The fine imposed in respect of the offence against
s.165(a) of the Motor Traffic Ordinance 1936 be
confirmed but that the appellant be allowed two
months to pay that fine.

(d) The fine imposed in respect of the offence against
s.181 of the Motor Traffic Ordinance 1936 be
confirmed but that the appellant be allowed three
months to pay that fine.

(e) The fine imposed in respect of the offence against
s.203(1) of the Motor Traffic Ordinance 1936 be
confirmed but that the appellant be allowed four
months to pay that fine.

30. You are required to report to the Co-ordinator of the Community Service Order Unit, 1st Floor, Melbourne Building, West Row, Canberra City by not later than 4 p.m. on Tuesday, 13 May 1986.

31. I further direct that you be released from custody forthwith.