Mercieca v Webber & Ors [2001] ACTSC 41 (3 May 2001)

Last Updated: 11 June 2002

Joseph Mercieca v J. Webber & Others

( 2001) ACTSC 41 (3 May 2001)

CATCHWORDS

Ex Tempore Judgment

No. SCA 17 of 2001

Judge: Justice J.E.J. Spender

Supreme Court of the ACT

Date: 3 May 2001

IN THE SUPREME COURT OF THE )

) No. SCA 17 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM A MAGISTRATE

BETWEEN: JOSEPH MERCIECA

Appellant

AND: J. WEBBER & OTHERS

Respondent

ORDER

Judge: Justice J.E.J. Spender

Date: 3 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. In respect of the sentences imposed in respect of the charges of driving whilst suspended charge on 7 February 2001, on each of the false plate charges, and on the charge of having goods in custody, the appeals be allowed. The other sentences are confirmed.

2. In respect of each of the false plate charges and on the charge of having goods in custody, Mr Mercieca be sentenced to a term of imprisonment to expire on the rising of the court.

3. In respect of the charge of driving whilst suspended, committed on 7 February 2001, Mr Merceica is sentenced to a term of imprisonment to expire on the rising of the court, that term taking into account the 34 days spent in custody on various of the charges against him.

4. Further, in respect of that offence, Mr Mercieca be released forthwith upon his giving security self in the sum of $1,000 that he be of good behaviour for a period of 12 months from 3 May 2001; that he will, during that period of 12 months, comply with the following conditions: that he will during the period so specified be subject to the Director of Adult Corrective Services in the Territory; that he will obey all reasonable directions of the director or his delegate in relation to his place of residence and in relation to any drug or alcohol counselling, including but not being limited to attendance at any court alcohol and drug assessment service program.

5. There be no order as to costs including reserved costs. 1. This is an appeal against the severity of the total sentence that was imposed on Joseph Mercieca by a special magistrate on 21 February 2001. The appellant pleaded guilty to a number of offences including possession of goods in custody, but the other offences involved traffic matters including driving with false plates, driving while suspended, driving an unregistered motor vehicle, and driving an uninsured motor vehicle. There were a number of multiple offences of that kind of traffic offence.

2. The appellant's licence was suspended for fine default on 1 May 2000.

3. On 21 February 2001, Mr Mercieca was sentenced to 4 months imprisonment on the charge of driving while suspended committed on 7 February 2001. He was sentenced to 1 month on each of the false pretences charges to be concurrent with the 1 month imprisonment on the other driving while suspended charges, which were ordered to be served concurrently with the 4 month period but to be served cumulatively on the 4 months of driving while suspended. In respect of the goods in custody charge he was sentenced to 1 month imprisonment to be served cumulatively on the other terms of imprisonment.

4. The effect of that was to have a total term of imprisonment of 6 months, made up of 4 months imprisonment for the driving while suspended on 7 February 2001 charge, 1 month on each false pretences charge to be cumulative on that 4 month period and one month on the goods in custody charge, to be cumulative on the other terms of imprisonment.

5. The appellant has been in custody for a total of 34 days in respect of some of the various offences for which he was sentenced, namely 8 days from

3 to 10 August, 20 days from 16 September to 5 October and 6 days from 16 February to 21 February.

6. The function of an appeal court, in an appeal against sentence, is set out in the well known passage in House v the King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, more recently restated by the full court of the High Court in Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at 671-2, and referred to in the well known case of R v Tait & Bartley (1979) 46 FLR 386 at 388.

7. Regrettably, in this case there are a number of errors of principle which call for the intervention of this court. The special magistrate found that the appellant was a "repeat offender", by reason of his having been convicted of offences which occurred in New South Wales. The maximum penalty which is applicable to a "repeat offender" is 12 months imprisonment, as opposed to 6 months imprisonment for a first offender, pursuant to subsection 32(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (the Act).

8. The term "repeat offender" is defined in paragraph 32(9)a of the Act to be a person who has previously been convicted of an offence under section 32 of the Act. Consequently, Mr Mercieca was not a repeat offender by virtue of any of his convictions in New South Wales and he should not therefore have been sentenced on the basis that he was a repeat offender under the Act. The magistrate, however, sentenced him on the basis that he was such a repeat offender.

9. Also, the special magistrate found that the appellant had been convicted in the local court at Queanbeyan on 23 October for various offences, and he had also been convicted in the same court on 4 December for further offences. Unfortunately, each said offence was a duplication. The appellant had in fact been charged and convicted for one set of offences. The police record provided to the magistrate was wrongly interpreted by her Worship, and it follows that the special magistrate therefore exercised her sentencing discretion on the basis of a serious error of fact.

10. The third difficulty concerns the very vexed problem caused by section 451(1) of the Crimes Act 1900 (ACT). This section has been the subject of two recent full court judgments, Keen v R [2000] FCA 940, and Geiger v R [2001] FCA 475, a judgment handed down as recently as 27 April 2001.

11. Geiger in particular has extremely important ramifications for the sentencing function of both judges and magistrates in the Territory, and as is suggested by Gyles J, the urgent consideration by the legislature of clarification of the operation of that section, and of the functions of sentencing judges and magistrates is called for. I repeat that suggestion.

12. Because of the difficulties thrown up by that decision, and which is exemplified in the present matter, where there was a failure to specify the dates on which the sentence was imposed or when Mr Mercieca was to be released, I propose to deal with this matter in a way that might be considered quite favourable to the present appellant.

13. Because of the errors which I have set out earlier, it is necessary to allow the appeals in respect of the three offences in respect of which terms of imprisonment were imposed. It is therefore appropriate and competent for this court to re-sentence the appellant in respect of each of those offences. I accept the submission made by Ms Lovell on behalf of the prosecution, the respondent to this appeal, that the ultimate sentence imposed by the special magistrate, notwithstanding the errors which have been identified, was well within the range of discretion of a sentencing court proceeding without error.

14. Moreover, a term of imprisonment such as that imposed by the special magistrate would have been an appropriate total sentence, having regard to what was noted by her Worship to be a "flagrant disregard of the law."

15. Notwithstanding those observations, it seems to me that recognition ought to be given to the fact that 34 days was spent in custody prior to the sentence in February this year, and that he has been serving the sentence imposed by the special magistrate since 21 February.

16. I have already expressed my fear that on his release the present appellant will commit further offences. Let there be no argument, no doubt, that should that happen he will be facing imprisonment. I should note that I do take into account in the re-sentencing process the requirements of section 429A of the Crimes Act 1900 (ACT) and section 451 of that Act. I note, of course, that a sentence of imprisonment is to be imposed pursuant to that Act only as a matter of last resort.

17. However, given the history of the matter, including the sentencing process and the sentences that were then imposed it seems to me to be a fair outcome if I make the following orders, which I now do.

18. I allow the appeal from the sentences imposed in respect of the driving whilst suspended charge on 7 February 2001, on each of the false plate charges, and on the charge of having goods in custody. The other sentences are confirmed.

19. In respect of each of the false plate charges and on the charge of having goods in custody, I sentence Mr Mercieca to a term of imprisonment to expire on the rising of the court.

20. In respect of the charge of driving whilst suspended, committed on 7 February 2001, I sentence Mr Mercieca to a term of imprisonment to expire on the rising of the court, that term taking into account the 34 days spent in custody on various of the charges against him.

21. I further order that in respect of that offence, Mr Mercieca be released forthwith upon his giving security self in the sum of $1,000 that he be of good behaviour for a period of 12 months from today; that he will, during that period of 12 months, comply with the following conditions: that he will during the period so specified be subject to the Director of Adult Corrective Services in the Territory; that he will obey all reasonable directions of the director or his delegate in relation to his place of residence and in relation to any drug or alcohol counselling, including but not being limited to attendance at any court alcohol and drug assessment service program.

22. I don't propose to make any order as to costs including reserved costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice J.E.J. Spender

Associate:

Date: 2001

Counsel for the Appellant: Mr G. Corr

Solicitor for the Appellant: Darryl Perkins, Solicitor

Counsel for the Respondent: Ms Mary Terese Lovell

Solicitor for the Respondent: Director of Public Prosecutions

Date of hearing: 3 May 2001

Date of judgment: 3 May 2001