Gee v Bell [2008] ACTSC 113 (2 October 2008)

Last Updated: 24 October 2008

ADRIAN CHARLES GEE v TAMARA JEAN BELL

[2008] ACTSC 113 (2 October 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 11 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 2 October 2008

IN THE SUPREME COURT OF THE )

) No. SCA 11 of 2008

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ADRIAN CHARLES GEE

Appellant

AND: TAMARA JEAN BELL

Respondent

ORDER

Judge: Higgins CJ

Date: 2 October 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld to the following extent.

2. The sentence of imprisonment of four months be set aside, and in lieu thereof there be a sentence of 16 periods of detention.

3. The sentence of imprisonment of one month be set aside, and it be substituted for by four of the periods of periodic detention that have been imposed on the first matter.

4. The appeal be otherwise dismissed.

5. The loss of licence for a period of 18 months from 6 February 2008 is confirmed.

1. First of all I note that which I referred to in argument, that the argument that the laying of the information does not commence proceedings not only flies in the face of the express provisions of the Magistrates Court Act 1930 (ACT) to that effect, but is also contrary to authority, and there are other cases mentioned in this report, but it is certainly contrary to R v Nicholl; Ex-parte Davies (1985) 59 ACTR 32 where the issue is expressly addressed in respect of a juvenile: did the proceedings against the juvenile commence when the juvenile appeared in court and was charged, or were the proceedings commenced when the juvenile, still then being a juvenile, was subject to an information laid before the Magistrates Court, before the particular officer of the court with a power to receive informations? The latter was held to be the case by Kelly J and, with respect, that accords with my understanding of it as well. So that the appeal must be dealt with on the basis that the proceedings were validly commenced, validly came before Magistrate Lalor and were lawfully dealt with by him as, indeed, appears in the notice of appeal.

2. The question, though, as to whether, on this appeal, that decision made to sentence the appellant to 4 months’ imprisonment and another month on the second charge, but concurrent, is a sentence which is or not manifestly excessive in the circumstances. I say “in the circumstances” advisedly because on this appeal additional evidence has been tendered. It has been noted already in many cases that that additional evidence, though it may not indicate the magistrate made an error on the material before him or her, may nevertheless indicate that if that material had been before the magistrate then it would have been an error to have proceeded in the way the magistrate did.

3. In this case there are a number of features which must be noted. The first is that it is apparent that the appellant has a very bad record, and his bad record was undoubtedly the reason why the learned magistrate imposed the sentence which he did. There are, however, some factors which his Honour seemed to have taken into account which may bespeak a degree of denial of leniency, or finding of aggravation, which ought not to have been made.

4. The first is it was suggested that the appellant had been evading service of proceedings, and thereby the matter came before the court some considerable time after the event. That may have been a reason, I suppose, for not taking delay into account, but I can not see why it would be a matter that should be taken into account in aggravating the penalty to be imposed. Insofar as his Honour seems to have done that it would have been in error.

5. The other matter is that his Honour does not explain why a sentence of full-time imprisonment, as imposed, was the only available penalty. Mr Gee had been assessed as suitable for service by way of periodic detention, indeed community service as well, and I add further that he had also been assessed as suitable for a good behaviour order. It was undoubtedly open to his Honour not to have imposed any of those lesser penalties and proceeded to impose imprisonment. Certainly, the offender’s record was not such as to attract any leniency.

6. However, now explained, although it was, if I may say so, obliquely mentioned, are his family circumstances and the effect that the sentence of imprisonment, if it continued, would have on his family. That is a relevant matter. The other, although it was to some extent referred to, it has now been referred to in more detail, is the effect on his employment. That has a number of aspects to it; there is not only his own personal employment, but that of those persons that he, in turn, employs, but also a matter that arose after the sentence, of course, being the evidence of Mr Johnson which has been admitted by way of affidavit, and the effect on his operations.

7. I note too at page 58 of the appeal book, which refers to the pre-sentence report, that seems to be a significant comment by the pre-sentence reporter, that is, that Mr Gee had changed his alcohol consumption pattern, apparently realising that it had not been terribly effective to keep him out of trouble in the past. Although not, perhaps, as dramatic as a case where somebody might say ‘I’m never going to touch alcohol again’, that was nevertheless a change in circumstances from the position which applied, it would seem, before he was apprehended for the offence his Honour was dealing with, and it is relevant to take into account efforts being made by a person to adopt rehabilitation.

8. He has, I am told, spent 23 days in custody, and I accept that amounts to the equivalent of three periods of detention. It follows that if the remainder of the sentence is to be served by way of periodic detention there will be 13 weeks remaining, commencing next Friday. His licence was suspended as from 6 February 2008 and the appropriateness of the order suspending his driving licence for 18 months from that date is not challenged. Indeed, to an extent, it reflects some degree of leniency that his Honour extended because the indicative disqualification is 3 years.

9. In the circumstances, my order is that the appeal be upheld to this extent: that the imprisonment period of 4 months be set aside, that sentence be set aside and in lieu thereof that there be a sentence of 16 periods of detention, that is 4 months by way of periodic detention, of which, I note, three periods have been served. The first of the remaining 13 periods will therefore commence to be served on this coming Friday, 3 October 2008, and continue thereafter until those periods are completed. I should say expressly that I also set aside the period of one month’s imprisonment, and that is to be substituted for by four of the periods of periodic detention that have been imposed on the first matter. I otherwise dismiss the appeal, confirming that the loss of licence dates from 6 February 2008 and proceeds for a period of 18 months thereafter.

10. Mr Gee, your record in relation to drinking and driving is appalling. It is no wonder the learned magistrate thought of imprisonment, and while there are some circumstances which can now be taken into account that would ameliorate against that, in these circumstances you might not be so fortunate if you were to offend again. I make that point to you and you should bear that in mind.

11. The other thing is that on periodic detention you must obey all directions that you are given in relation to periodic detention. You must turn up sober, not under the influence of any drug or alcohol, indeed, the same limit applies, as I understand it, as applies to a repeat offender, namely 0.02. If there is any trace of alcohol when you turn up, then you can be breached. If you are breached, you might have to serve the periods of detention as full-time imprisonment. So bear that in mind.

I certify that the preceding 11 (eleven) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 2 October 2008

Counsel for the appellant: Ms J Keys

Solicitor for the appellant: Unrepresented

Counsel for the respondent: Mr A Doig

Solicitor for the respondent: Director of Public Prosecution for the ACT

Date of hearing: 2 October 2008

Date of judgment: 2 October 2008