Terrence Leslie Freer v Shaun Barry Bennetts [1986] ACTSC 66 (18 July 1986)

SUPREME COURT OF THE ACT

TERRENCE LESLIE FREER v. SHAUN BARRY BENNETTS
S.C. No. 1098-1101 of 1985
Criminal Law

COURT

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

CATCHWORDS

Criminal Law - Offences against Motor Traffic Ordinance 1936 and Motor Traffic (Alcohol and Drugs) Ordinance 1977 - Sentences of imprisonment cumulative upon earlier sentences of imprisonment themselves aggregating more than 12 months and ordered to be served cumulatively - No non-parole period fixed as required by Parole Ordinance 1976.

Parole Ordinance 1976 (A.C.T.) - Ss.7 and 8.

HEARING

CANBERRA
18:7:1986

ORDER

In respect of matter number S.C.1101/85 (on appeal from the information numbered 84 7526 in the Court of Petty Sessions) the appeal against conviction be dismissed and the sentence of six months imprisonment imposed in the Court of Petty Sessions be confirmed.

In respect of matter number S.C.1100/85 (on appeal from the information numbered 84 7527 in the Court of Petty Sessions) -
(a) the appeal against conviction be dismissed.

(b) the appeal against sentence be allowed.

(c) in lieu of the sentence of one month's
imprisonment imposed in the Court of Petty
Sessions a fine of $300 be paid and that in
default of payment the appellant should be
imprisoned for 12 days. No time to pay the said
fine is allowed.

In respect of matter number S.C.1099/85 (on appeal from the information

numbered 84 7528 in the Court of Petty Sessions) -

(a) the appeal against conviction be dismissed.

(b) the appeal against sentence be allowed.

(c) in lieu of the sentence of one month's
imprisonment imposed in the Court of Petty
Sessions a fine of $300 be paid and that in
default of payment the appellant should be
imprisoned for 12 days. No time to pay the said
fine is allowed.

In respect of matter number S.C.1098/85 (on appeal from the information

numbered 84 7529 in the Court of Petty Sessions) -

(a) the appeal against conviction be dismissed.

(b) the appeal against sentence be allowed.

(c) in lieu of the sentence of one month's
imprisonment imposed in the Court of Petty
Sessions a fine of $300 be paid and that in
default of payment the appellant should be
imprisoned for 12 days. No time to pay the said
fine is allowed.

The non-parole period of 15 months is confirmed.

DECISION

These are appeals against convictions recorded and sentences imposed in the Court of Petty Sessions on 9 September 1985. Four informations were laid against the appellant. They alleged:-

(a) that he offended against sub-s.34(2)(b) of the
Motor Traffic (Alcohol and Drugs) Ordinance 1977
(the Alcohol and Drugs Ordinance) in that he,
being a person whose licence had been cancelled on
conviction for an offence involving alcohol or
drugs, drove a motor vehicle when he had not been
granted a licence in pursuance of an order of the
Court under that Ordinance;

(b) that, contrary to the provisions of s.165(a) of
the Motor Traffic Ordinance 1936 (the Ordinance),
he drove a motor vehicle not then registered under
the Ordinance;

(c) that, contrary to the provisions of s.51(1) of the
Ordinance, he drove a motor vehicle in relation to
the use of which there was no third party policy
in force; and

(d) that, contrary to the provisions of s.170 of the
Ordinance, he caused to be upon a vehicle a number
plate other than one issued for the purposes of
the Ordinance which was likely to be taken to be
the number plate of the vehicle.

2. On conviction for the offence against the Alcohol and Drugs Ordinance, he became liable to imprisonment for a period of 12 months or a fine not exceeding $2,000 or both such imprisonment and fine. On convictions for the offences against the Ordinance he became liable, in his circumstances, to a fine of $500 in respect of each. It is to be noted that s.192 of the Ordinance, a general penalty provision, was amended by the Motor Traffic (Amendment) Ordinance 1984 (No. 1 of 1984) to repeal a former provision which permitted imprisonment for six months as well as a fine in respect of the offences with which it was concerned (including ss.165(a) and 170) and to permit of a fine of $500 only in respect of those offences.

3. Pleas of not guilty were entered before the learned Magistrate who eventually found all four offences proved. In respect of the charge against s.34(1)(b) of the Alcohol and Drugs Ordinance he sentenced the appellant to imprisonment for six months. In respect of each of the other offences he sentenced him to imprisonment for one month. All four sentences were to be served concurrently and at the end of sentences then being served by the appellant in respect of convictions to which I will shortly refer.

4. All four charges were said to relate to offences committed on 1 December 1984.

5. On 27 May 1985 the appellant was dealt with on a charge that on 12 January 1985, contrary to the provisions of s.22 of the Alcohol and Drugs Ordinance, he refused to provide a sample of his breath for breath analysis. Although he pleaded not guilty he was convicted and sentenced to imprisonment for nine months. On the same day he was dealt with on a charge that on 12 January 1985 he offended against sub-s.34(2)(b) of the Alcohol and Drugs Ordinance. Again he pleaded not guilty but again he was convicted and was sentenced to imprisonment for nine months to be served cumulatively with the sentence imposed in respect of the first charge. Although the terms of imprisonment were in the aggregate not less than 12 months no non-parole period was fixed as s.7(1) of the Parole Ordinance 1976 required.

6. When the appellant was sentenced on 9 September 1985, again no non-parole period was fixed, although one ought to have been by virtue of the provisions of ss.7 and 8 of the Parole Ordinance 1976 read together.

7. When this was noted an opportunity was afforded the appellant to seek an order that the Magistrates Court (as the Court of Petty Sessions now is) might fix a non-parole period pursuant to the provisions of s.7(4) of the Parole Ordinance. This opportunity was availed of and the learned Magistrate fixed a non-parole period of 15 months.

8. The respondent gave evidence before the learned Magistrate in support of the charges. He said that at about 6.20 p.m. on 1 December 1984 he saw a green Humber sedan being driven in an easterly direction in Launceston Street, Lyons. He identified the driver as the appellant. It is a fair inference from the evidence that the respondent was keeping watch for the appellant whom he suspected of driving whilst his licence was cancelled.

9. Having observed the appellant driving, the respondent approached him and asked was the vehicle he had been driving registered and covered by a third party policy. The appellant replied that he was getting it done on the following Monday. The respondent then asked what was the appellant's reason for driving the vehicle without registration and a third party policy. The appellant is said to have replied, "Like I said, I am getting it done on Monday". He was asked what was his reason for attaching the number plates to the vehicle. (There is no suggestion that the number plates had been issued in respect of it.) He replied, "I thought it would be better than going down to Motor Registry without any". He was asked whether he was aware that it was an offence to do so. He replied, "No". Asked whether he was aware that his licence had been cancelled. He replied, "Yes, but I got a letter from Motor Registry saying I could renew my licence". Asked what was his reason for driving the vehicle when his licence had been cancelled, he replied, "I thought it was all right now, it has been over 18 months now".

10. The evidence of the conversation just referred to was read from the respondent's notes taken immediately after the conversation.

11. A neighbour gave evidence supporting that given by the respondent but there was a substantial discrepancy in his evidence concerning the time when the incident took place. He fixed it at a point much earlier in the afternoon.

12. The appellant gave evidence and was cross-examined concerning the supposed issue of a licence. He said that he had received a letter from the "Motor Registry people" and got his licence back. He was unable to produce the letter nor did he produce the licence. He said,

"I got me licence back in the post and when I
went down to Motor Registry office,
everything was all right. I did not - I
never used that licence - you know, I have
never used it."

Subsequently he was asked,

"When you went down, did you tell them that
you had been cancelled by Mr Nicholl (a
Magistrate of the then Court of Petty
Sessions)?"

He replied,

"I said I had lost me licence, and they just
said, 'Oh, you must have it back' and that
was it."

13. The learned Magistrate did not say specifically that he accepted or rejected any of the witnesses but it is plain that he must have accepted the respondent and rejected the evidence given by the appellant.

14. Following a careful perusal of the evidence before the learned Magistrate and of his reasons for judgment and aided by the submissions of counsel, I am not prepared to infer that he was wrong. It seems to me that there was ample evidence upon which he could find as he did and he had the advantage of seeing the witnesses. The version given by the appellant is improbable and I am satisfied that it is not proper for this Court to draw an inference that the evidence should have raised a reasonable doubt in all the circumstances.

15. Accordingly, I dismiss the appeals against conviction.

16. Having regard to the appellant's record, a very bad one, I am not prepared to say that the sentence of six months imprisonment imposed in respect of the offence against s.34(2)(b) of the Alcohol and Drugs Ordinance was in any way excessive. Accordingly I propose to confirm that penalty. The situation regarding the other three offences is in different case. The learned Magistrate had no power to impose sentences of terms of imprisonment. Accordingly I uphold the appeals against sentence in respect of those matters and in lieu of those sentences I intend to impose a fine of $300 in respect of each offence ordering that in default of payment the appellant be imprisoned in respect of each fine for a period of 12 days.

17. I confirm the non-parole period of 15 months fixed by the learned Magistrate which seems to be within, but only just within, a proper exercise of the discretion to fix such a period.