Athol Anzac Morris v Jeffrey Clyde East Sca [1988] ACTSC 32 (10 June 1988)

SUPREME COURT OF THE ACT

ATHOL ANZAC MORRIS v. JEFFREY CLYDE EAST
S.C.A. No. 85 of 1987
Appeal - Evidence - Sentencing

COURT

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

CATCHWORDS

Appeal - appeal against severity of penalty imposed by Magistrate on drink-driving charge - whether Magistrate erred in law by not applying s.556A Crimes Act 1900 (N.S.W.).

Evidence - power of Supreme Court to receive further evidence upon appeal from Magistrate - whether affidavit of legal practitioner as to his experience of sentencinq practices of Magistrates regarding drink-driving offences admissible - application of tariff principle.

Sentencing - consistency - use of statistics - distinguished from legal practitioner's experience of sentencing practices - tariff principle - principle of parity.

Lowe v. R ( 1984) [1984] HCA 46; 54 ALR 193

Poyner v. R (1986) 66 ALR 264

Taylor v. Samuels (1977) 16 SASR 266

R v. Visconti (1982) 2 NSWLR 104

The Queen v. Barber (1976) 14 SASR 388

Breed v. Price 36 NTR 23

The Institutes of the Emperor Justinian Book 1, Title 1

Tarry v. Pryce (1987) 24 A Crim R 394

Carter's Australian Sentencinq Diqest

Interim Report on the Sentencinq of Federal Offenders, Australian Law Reform Commission 15, para 448

Discussion Paper No. 29, Sentencinq: Procedure para 152

HEARING

CANBERRA
10:6:1988

ORDER

The appeal be dismissed and the fine of $200 and the suspension period of three months be confirmed.

The question of costs be reserved.

DECISION

This is an appeal against the severity of a penalty imposed on the appellant by Magistrate Ward in the Canberra Magistrates Court on 26 November 1987 on a charge of driving with more than the prescribed concentration of alcohol in his blood. The penalty imposed was a fine of $200 and a suspension of the appellant's driving licence for three months.

2. The facts are simple. The appellant was driving home with his wife after dining out with friends on the evening of Boxing Day. On his way home he was the subject of a random breath test conducted by police shortly after midnight in Limestone Avenue, Ainslie. A screen test proved positive. He was conveyed to the city police station and a breath analysis resulted in a reading of .14. The limit prescribed by s.19 of the Motor Traffic (Alcohol and Druqs) Ordinance 1977 is 08.

3. The appellant did not give evidence before the Margistrate or on the appeal and the subjective factors made known to the Magistrate were very brief indeed. He was said by his counsel to be aged 58, semi-retired, married, a native of Canberra with some forty-one years of driving experience with all types of vehicles and who had not been charged with any offence on any prior occasion. Counsel for the prosecution stated that the police formed the opinion that the appellant was slightly affected by liquor. The Magistrate no doubt accepted all that, as I do.

4. There was an initial submission that the Magistrate had erred in law when he stated that "drink-driving charges and traffic charges generally do not lend themselves very well to the application of s.556A of the Crimes Act, although I will qrant that there are occasions when this could be done". In my view, the statement in those terms did not involve an error of law. The Magistrate indicated that he recognized that there were occasions when, because of the mitigating circumstances, or the antecedents of the offender or both, the recording of a conviction for a drink-driving offence was not appropriate and the offender could be discharged under s.556A of the Crimes Act, 1900 (N.S.W.) without proceeding to conviction. It is well known that drink-driving offences are, unfortunately, in many instances committed by people otherwise of good character. The prior good character of the offender in such a case may be less likely to attract leniency than for an offence of, say, dishonesty or violence which may be seen to be out of character.

5. The major around of the appeal was that the penalty was manifestly excessive and, more particularly, that it was inconsistent with the sentencing practices of the Canberra Magistrates Court for similar offences committed by offenders with similar backgrounds.

6. The so-called tariff principle is of course well established. It is that, in relation to the given circumstances of an offence and the given circumstances of the offender, there is a certain range of penalties below which or above which the sentencing tribunal should not go. The exact upper and lower limits of the tariff, however, are not precisely established, but in the event that the sentencing tribunal imposes a sentence which is markedly outside the extremes of the range, then that will of itself often provide a sufficient basis for an appellate court to decide that the sentence was manifestly excessive or manifestly lenient and so provide the appellate court with the opportunity to substitute a sentence which is in its opinion appropriate to the circumstances of the offence and the offender. The principle of the tariff is similar to another principle applied by sentencing tribunals, that is to say, the principle of parity. That principle seeks to ensure that, other things being equal, one of several co-offenders who has been party to the commission of the same of fence should expect a sentence which is not substantially different from that of co-offenders. Where there is disparity of sentence of co-offenders that again in itself may provide sufficient ground for an appellate court to substitute its own view of a proper sentence for the co-offender who complains of the disparity. In Lowe v. R [1984] HCA 46; (1984) 54 ALR 193 four of the five justices who comprised the High Court on that occasion took the view that disparity of itself did not necessarily justify the reduction of the sentence by an appellate court. Gibbs C.J. said at pp 194-195:

"The fact that one co-offender has received a

sentence which is more severe than that imposed
on a co-offender whose circumstances are
comparable would provide no reason in logic for
reducing the former sentence, if the only
question were whether that sentence, viewed in
isolation, was manifestly excessive."

Brennan J. said at p 203:

".....intervention on the ground of disparity
alone was erroneous...."
Dawson J. said at p 205:

"There is no rule of law which requires
co-offenders to be given the same sentence for
the same offence even if no distinction can be
drawn between them."

On p 206, his Honour added:

"There is always the dilemma that in order to
eliminate the disparity the court may have to
reduce a sentence which it regards as proper in
itself because of an inadequate sentence imposed
upon a co-offender. To do so, it has been
observed, is to compound the error."

7. Wilson J. agreed with the Chief Justice and Dawson J. All justices, including Mason J., as he then was, who dissented, referred to the injustice that might arise when a co-offender who received a more severe sentence than his fellows could reasonably feel a real sense of grievance.

8. It is this justified sense of grievance which may be seen to produce injustice if an offender is subjected to a sentence which is more severe because it lies outside the accented range of sentences appropriate to the circumstances of the offence and the mitigating circumstances, if any, relating to the offender. In any event, both the principle of the tariff and the principle of parity may be seen as cart of a wider principle, namely the need to avoid inconsistency in sentencing: see Poyner v. R (1986) 66 ALR 264 in which the High Court unanimously dismissed an application for special leave to appeal, saying that the guestion of the importance of consistency in sentencing had been fully discussed in Lowe.

9. For myself I must say that in view of what I consider to be a very high reading relating to the concentration of alcohol in the appellant's blood, the fact that the Magistrate declined to proceed without recording a conviction or imposing a penalty, occasions no surprise and does not disclose error or manifestly excessive severity. Nor on the face of it should it result in a person in the position of the appellant feeling a justified sense of grievance or discrimination. However, counsel for the appellant in the appeal sought to support the argument of excessive severity by reliance upon an affidavit sworn by a Canberra legal practitioner as to his experience of the practice of Canberra Magistrates in sentencing for drink-driving of fences. Counsel for the prosecution opposed the admission of this affidavit into the hearing of the appeal. It became necessary as a threshold question to decide whether or not the affidavit ought be admitted. However, having read the affidavit for the purpose of considering the guestion of admissibility, I invited counsel to proceed on the hearing of the appeal, subject to the guestion of the affidavit's admissibility.

10. The power of this Court to receive further evidence upon an appeal from a Magistrate is not unlimited and is not subject solely to the discretion of the Court. It is governed by s.214 of the Magistrates Court Ordinance 1930. It was submitted that the affidavit was admissible by virtue of the provisions of s.214 and in particular of subs. (4) which is in these terms:

"214.(4) Where evidence is tendered in an appeal to which this section applies, the Supreme Court

shall, unless it is satisfied that the evidence
would not afford any ground for allowing the
appeal, receive the evidence if -

(a) it appears to the Supreme Court that the
evidence is likely to be credible and
would have been admissible in the
proceedings out of which the appeal
arose on an issue relevant to the
appeal; and

(b) the Supreme Court is satisfied that the
evidence was not adduced in those proceedings
and there is a reasonable
explanation for the failure to adduce
it."

11. If the conditions laid down by paragraphs (a) and (b) of section 214(4) are satisfied, then the Supreme Court is obliged to admit the evidence tendered "unless it is satisfied that the evidence would not afford any ground for allowing the appeal". The effect of this provision, in my view, is that the onus lies upon the party against whom the fresh evidence is tendered to satisfy the Supreme Court that the evidence, which the Supreme Court would be otherwise obliged to admit pursuant to paragraphs (a) and (b) , "would not afford any ground for allowing the appeal". In any event, the conditions laid down by paragraph (a) will not be met unless the evidence tendered "would have been admissible in the proceedings out of which the appeal arose on an issue relevant to the appeal". The question therefore has to be determined whether the affidavit of the practitioner tendered on behalf of the appellant would have been admissible before the Magistrate on a relevant issue.

12. The deponent of the affidavit states that he is a partner in a firm of practitioners in Canberra and has practised in that capacity since 1 July 1987, after having practised continually in Canberra since his admission on 20 August 1980. He states that he has considerable experience in the criminal jurisdiction of the Magistrates Court and has appeared on more than one hundred occasions for persons charged with contravention of the Motor Traffic (Alcohol and Drugs) Ordinance 1977. He says that he has been present in court on more than two hundred occasions when persons for whom he has not been acting have pleaded guilty in respect of similar offences. He states that a practice has developed in the Magistrates Court of applying the provisions of s.556A of the Crimes Act 1900 to persons charged with "driving whilst under the influence of alcohol when certain criteria are met". These criteria are said to be three in number: one, where the defendant has been licenced continuously for a period of less than twenty years and has no driving convictions during that time; two, when the breath analysis is not more than 0.20; and three, where there has not been an accident or course of dangerous or erratic driving. The practitioner recounts an occasion when he appeared before the Chief Magistrate. He goes on to state that he himself has developed a practice of advising people who satisfy the so-called criteria that they can expect to be dealt with under the provisions of s.556A. He says that he has appeared before all the Canberra Magistrates who have held office since his admission and never entered a plea of guilty for such an offence before Magistrate Ward where the criteria referred to in paragraph 4 hereof have been met and does not have any personal knowledge of the attitude of that particular Magistrate towards the application of s.556A.

13. Was the affidavit or the evidence contained in it admissible before the Magistrate? No authority was cited on behalf of the appellant to support the contention that the material relied upon was admissible according to the rules of evidence. In my view, the appellant was not entitled under the laws of evidence to have that material admitted as evidence. A litigant is not entitled to have a legal practitioner, relying upon his own experience, give evidence to a court as to what the practice of that court is. The opinions of a practitioner are simply not relevant. The final paragraph of the affidavit in the present case is presumably intended to suggest that the Magistrate in guestion lacked experience, and it was the experience of the practitioner which was appropriate to provide a source of enlightenment. There is every reason in policy why a practitioner claiming experience should not purport to give evidence to inform one member of the court what the practice of the other members of the court might be.

14. However, in the sentencing process a court is not necessarily bound to observe the rules of evidence and at least where no objection is taken on the part of the person being sentenced, the court may inform itself of material matters in whatever way it sees fit. Indeed, a court may invite counsel to state what he or she believes the tariff to be but the statement of opinion is not evidence and should not be expressed without invitation. If the defendant, or indeed the prosecution, seeks to put before a court factual material relating to the sentences or penalties that have been handed down in comparable cases in recent times, it is unlikely, I would have thought, that such material would be objected to and it may be that the court would take that material into account if it thought that it was likely to be helpful. Indeed it may be that such material, if properly proved, is admissible at the sentencing stage even over objection: see Taylor v. Samuels (1977) 16 SASR 266 at p 277 per Bray CJ. Statistics from the Australian Bureau of Statistics were regarded as admissible without proof for the purpose of appeal in R v. Visconti (1982) 2 NSWLR 104 (N.S.W. Court of Criminal Appeal).

15. What is of assistance are facts, which often may be in statistical form, relating to penalties or sentences in comparable cases, because these may go to establish the tariff, the customary range of penalties or sentences usually imposed for like of fences where the facts of the of fence and possibly the facts relating to the offenders are sufficiently comparable. That sort of evidentiary material is quite distinct from the expression of opinion contained in the affidavit tendered in this appeal.

16. However, giving the word "admissible" its widest meaning and taking it to include material which the Magistrate might have taken into account, by consent, to inform himself, and assuming that he might have chosen to accent opinion evidence from a practitioner as to the practice of other Magistrates, the question still remains whether the respondent prosecution can satisfy this Court "that the evidence would not afford any ground for allowing the appeal". This seems to me to raise the same issues as those which arise on the merits of the appeal itself and I shall now proceed to deal with these.

17. Counsel for the appellant sought to support his submission that evidence of the sentencing practices of the Canberra Magistrates in drink-driving cases afforded a ground of appeal by reliance upon a number of decisions in South Australia and the Northern Territory. I do not think it is necessary to review all the cases cited, but I shall mention some of them.

18. In Taylor v. Samuels at p 273, Wells J., hearing an appeal from a magistrate, expressed disappointment and uneasiness at the lack of any safe and satisfactory method by which the Supreme Court could be informed of what penalties were being imposed in various regions of the State by magistrates and justices. It appeared that the Supreme Court was concerned about the possibility of inconsistency in sentencing on the part of widely scattered courts of summary jurisdiction in South Australia. The matter went to the Full Court by leave where there was a measure of agreement with what Wells J. had had to say. However, King J., as the then was, noting the absence of statistics which would enable the Court to ascertain what (if any) standards might apply in courts of summary jurisdiction, said as follows, at p 279-280:

"The starting point in a consideration of an
appeal against penalty must always be the
principle that, where, as in this case, the
sentencing court has correctly understood the
facts and has made no error in principle, the
appellate court will interfere only if the
penalty is manifestly excessive."

19. In The Queen v. Barber (1976) 14 SASR 388 an attempt was made on the part of the appellant appealing against the severity of a sentence of imprisonment for possession of Indian hemp to supply a schedule of penalties imposed in other cases of a similar nature. Bray C.J. said at p 390 that "such information is often incomplete, perhaps usually incomplete". Wells J. said at p 392 that such a schedule may, on rare occasions, be of some assistance, but where it was simply "a list of penalties, some of which might have been too high, but not taken on appeal, some too low but incapable of being tested on appeal, and some that were just and appropriate" without an accompanying statement of facts or transcript of the remarks of the sentencing judge or magistrate, such a schedule must be "unhelpful and may be positively misleading".

20. In Breed v. Price 36 NTR 23, the appellant appealed to the Supreme Court of the Northern Territory against the severity of a fine of $2,000 for driving an uninsured vehicle. He relied upon an affidavit sworn by his solicitor setting out the result of searches of the most recent files in the Darwin Court of Summary Jurisdiction relating to penalties for the particular offence. The average of the fines imposed was found to be $151. Nader J. expressed the view on the appeal that the general pattern of sentencing as reflected by the schedule erred on the side of being too light and failed to reflect the gravity with which the legislature intended the offence to be regarded. With acknowledgement to The Institutes of the Emperor Justinian Book 1, Title 1, his Honour remarked that the concept of justice involving impartiality and evenhandedness was both ancient and in accordance with the view of the ordinary person. Accordingly, regardless of whether the general run of sentences had been over-lenient or not, his Honour felt that the appellant had reason to feel aggrieved by his special treatment and he allowed the appeal, reducing the fine to 5300. His Honour added a final note of caution, suggesting that if the courts of summary jurisdiction in the future exercise of their sentencing discretion took the view that past penalties had been too light, the position should be corrected by an upward trend in penalties rather than by an abrupt increase. The remarks of Nader J. were subseguently referred to in the High Court in Poyner's case where the Court said that:

"These statements provide useful guidance which
should always be kept in mind but they do not
state a binding principle."

21. In Tarry v. Pryce (1987) 24 A Crim R 394 the appellant appealed to the Supreme Court of the Northern Territory from a sentence of six months imprisonment, to be suspended after serving two months with a disqualification from driving for eighteen months. The sentencing Magistrate took into consideration some statistical material which had apparently been placed before the Supreme Court in another case and decided that that statistical material had led to "a distorted view of the tariff". The Magistrate then proceeded to act upon statistical material which he said he had derived from a commuter analysis of relevant material heard before the court of summary jurisdiction.

22. Kearney J. held that it was not open to the Magistrate to proceed in that manner to depart from a tariff that had been fixed by the Supreme Court. His Honour then went on to examine for himself the computer records that had been placed before the Magistrate. During the course of his discussion of the records his Honour remarked that the mere statement that a certain percentage of all of fences of the type under consideration resulted in a sentence of imprisonment is of little use for sentencing purposes without reference to relevant facts and circumstances. His Honour further noted that although official criminal statistics, if they existed, might be of considerable use if used with caution and for general guidance, there were many difficulties in preparing such statistics in a form which would be useful for sentencing purposes. His Honour concluded that very little reliance could be placed upon the statistical material produced from the computer system under consideration. Nevertheless, his Honour also concluded that on the material available to him, viewed in the light of the facts and circumstances as such of those cases as can be ascertained, the sentence was manifestly excessive. In stressing the need for consistency in sentencing, his Honour remarked at p 402:

"The need for consistency in the punishment in
like cases of like persons overrides the right of
the sentencer to impose his idiosyncratic view."

23. It is notable that in the reported cases relied upon the courts have, whilst pointing to the desirability of reliable statistics on sentencing, generally found the material before them to be of little assistance. In New South Wales the Judicial Officers Act 1986 establishes a Judicial Commission whose functions include the dissemination of information and reports on sentences imposed by courts. There are other sources of statistics, such as the Australian Institute of Criminology, and publications such as Carter's Australian Sentencing Digest which may on occasions be of assistance.

24. The attitude of the Australian Law Reform Commission to the use of statistical information to establish the tariff is somewhat equivocal: see Interim Report on the Sentencing of Federal Offenders, ALRC 15, para 448, Discussion Paper No. 29, Sentencing: Procedure para. 152.

25. In Visconti Lee J., recognizing the value and limits of statistics, said at p 115:

"So far as the use of statistics is concerned, it
is my view that they have a useful function to
play in sentencing generally and a special part
to play in the crime of rape. It is a crime in
respect of which views differ sharply among
judges as to what are appropriate sentences and
the present case is an illustration of the depth
of the division. Statistics, in such circum- stances, may well

constitute some basis from

which the sentencing judge, to a degree at least,
may objectively evaluate his own independently
formed judgment. Statistics from a number of
other States can also be a useful addition to the
sentencing judge's stock of knowledge, for it is
difficult to see why, in a crime such as rape,
there should be marked divergences as to the
length of sentence imposed in different States,
unless, of course, there are special local
factors of significance present in particular
states or parts of States."

26. The concluding remarks of Lee J. are to the joint in the present appeal. People who drink and drive do not confine their activities to the Australian Capital Territory. Such offenders should not be entitled to substantially lighter penalties, or liable to substantially heavier penalties, because they happen to be dealt with in Canberra and not Queanbeyan or Yass. Establishing the appropriate tariff may involve consideration of penalties imposed outside the Territory.

27. The affidavit in the present case does not even surport to furnish statistical material. It is simply an experienced practitioner's opinion of the sentencing practice of magistrates gleaned from his own experiences in court and being in court when other sentences were handed down. Once it is established that the evidence is credible, admissible, relevant and that there is an explanation for the failure to adduce the evidence before the Magistrate, then the onus would appear to be upon the party against whom it is tendered to satisfy the court that the evidence would "not afford any ground for allowing the appeal". I am of the view that the view expressed by the deponent that the sentencing practices of Canberra Magistrates, other than Magistrate Ward, would have resulted in the appellant being dealt with under s.556A of the Crimes Act, does not afford a ground for allowing the appeal. I therefore hold that the affidavit may not be received into evidence in the appeal under s.214(4). I express no view whether the practice deposed to in the affidavit reflects the gravity with which the legislature intended such offences to be regarded.

28. I should perhaps mention s.214(3) of the Magistrates Court Ordinance 1930 which provides that the Supreme Court in an appeal "shall -

(a) if it thinks it necessary or expedient to do
so in the interests of justice -

(iii) receive the evidence, if tendered, of
any witness; and

(b) receive evidence with the consent of the
parties to the appeal."

29. The reasons I have already given dissuade me from the conclusion that it is necessary or expedient in the interests of justice to receive the affidavit tendered. The tender has, of course, not been consented to. The affidavit is accordingly not to be admitted under s.214. In the result, I am left without any reliable information furnished in the appeal as to the range of penalties imposed in the Magistrate's Court for offences of driving with more than the prescribed content of alcohol contrary to the provisions of s.19 of the Motor Traffic (Alcohol & Drugs) Ordinance 1977. That, however, does not mean the Court is incapable of proceeding properly to hear and determine the appeal. After all, appeals to the Supreme Court against the severity of penalties handed down in the Magistrates Court have been common for many years and counsel was not able to joint to any previous instance in which statistical material relating to the customary range of penalties in the Magistrates Court was successfully tendered in the Supreme Court over objection.

30. In the South Australian cases the Supreme Court was concerned to emphasise the need for uniform levels of sentence across the State. That sort of problem does not arise in this Territory. Moreover, the offence under consideration here is one that is only too well known in the general community and not least in the courts. The evils of driving motor vehicles whilst under the influence of liquor are productive of great cost and suffering not only in the Australian Capital Territory but throughout the nation. In Taylor v. Samuels King J. said at P 280 words which I would respectfully endorse:

"In considering penalty standards, it is
necessary to remind ourselves of the constantly
increasing number of road accidents and resulting
injuries and deaths. It is also necessary to
remind ourselves that research and experience
alike show that this evil is contributed to
substantially by drivers who are affected by
liquor. It is the duty of the courts to impose
penalties which reflect the seriousness of the
evil and which will be effective, so far as
penalties can be effective, to deter potential
offenders.

31. The Supreme Court is capable of knowing where the limits of a sound discretionary judgment lie where a person is sentenced for this type of offence. The offence carries a maximum penalty for a first offender of a $1,000 fine or imprisonment for six months or both together with a minimum period of suspension from driving of three months. In addition, the court may, if it considers that the circumstances so warrant, cancel the offender's driving licence and direct that the offender be disqualified from holding a licence unless and until such time as the court otherwise orders (see ss. 26, 28 and 31 (a) of the Ordinance). I fail to see why a person convicted of driving with a breath analysis reading of .14 is justified in feeling a proper sense of grievance by a penalty of a $200 fine and a suspension for the minimum period of three months. That would appear to me to be a lenient penalty, the leniency being explained chiefly by the fact that the offender has had no previous convictions, despite driving experience of some forty years. I do not think that the fact that the offence occurred without the offender being involved in a collision and without having been observed to be driving erratically, should attract much leniency. I cannot see that a middle-aged man with a good, even excellent, driving record should be entitled to expect that he can drive on the road with a breath analysis reading of 14 and be discharged without conviction so long as he does not cause an accident. I reject entirely the argument that personal deterrence is of no significance as I reject the submission that, because the appellant has offended only once during forty-one years of driving, then the chances of him offending again during his lifetime are negligible. Further, as King J. emphasised in a passage I have quoted, general deterrence and retribution are not to be discounted when sentencing for offences of this nature. It may well be that judicial minds may differ as to whether the present appellant might have been granted the benefit of s.556A and released without conviction. The fact is that he was dealt with leniently for an offence which is prevalent and productive of great cost and suffering in the community and on occasions committed by middle-aged men like the appellant who are of previous good character and have excellent driving records. Such persons are not likely to be deterred and social disapprobation is not likely to be adeguately expressed if discharge without conviction is to be guaranteed. Conversely, if discharge without conviction of such persons became automatic then that might lead to a practice of exercising discretion in favour of only such persons with similar backgrounds. Consistency in sentencing does not, in my view, require that the appellant be dealt with under s.556A of the Crimes Act 1900. I do not think that the standards of society would view the penalty in this case as, in the words of Mason J. in Lowe, "calculated to lead to an erosion of public confidence in the integrity of the administration of justice". The fine and duration of suspension were not manifestly excessive and the Magistrate did not fall into error. The appeal will be dismissed and the fine of $200 and the suspension period of three months confirmed. I shall hear the parties on costs.