Cotter v Corvisy [2008] ACTSC 64 (1 July 2008)

Last Updated: 28 July 2008

ALLAN GRAHAM COTTER v CATHERINE ELIZABETH CORVISY

[2008] ACTSC 64 (1 July 2008)

CRIMINAL LAW - appeal from decision of the Magistrates Court of the ACT - severity of sentence - manifestly excessive - error of law by Magistrate - Crimes (Sentencing) Act 2005 ss 35, 37.

CRIMINAL LAW - Sentencing principles - matters of mitigation - "worst category of case" - discount for plea of guilty - mental dysfunction - prior criminal record - whether error made out.

CRIMINAL LAW - offences - driving while disqualified - Road Transport (Driver Licensing) Act 1999, s 32.

Crimes Act 1900 (ACT)

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 33(1)(o), 35, 37

Magistrates Court Act 1930 (ACT) Pt 3.6, s 207

Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a)

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

Bowes v McCutcheon and Anor (1999) 29 MVR 549

Kennewell v Rand [2006] ACTCA 10

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Harrison [1997] UKHL 5; (1909) 2 Cr App R 94

R v Dumas [1988] VR 65

Reynolds v Wilkinson (1948) 51 WALR 17

Bensegger v R [1979] WAR 65

R v Ambler [1976] Crim LR 266

Cardillo v Taylor (1999) 29 MVR 301

Fernando v Keady (unreported, Supreme Court, WA, Murray J), 1007 of 1994, 4 March 1994)

Police v Cadd and Ors [1997] SASC 6566; (1997) 69 SASR 150

Johns v Police (unreported, Supreme Court, SA, Lander J, No S6729, 24 June 1998)

In the Marriage of Kitchener (1978) 20 ALR 535

R v Szeto [1999] NSWCCA 296

Lumby v Cooper [2008] ACTSC 53

Moutrage v Haines [2008] ACTSC 36

R v Thomson; R v Houlton (2000) 49 NSWLR 383

Carpenter v Purcell [2008] ACTSC 34

SA Police v Bastow; SA Police v Watson; SA Police v Lehmann (1996) 24 MVR 276

Channon v R [1978] FCA 16; (1978) 20 ALR 1

Parnis v The Queen [1993] FCA 624; (1993) 49 FCR 304

R v Letteri (unreported, NSWCCA, Gleeson CJ, Sheller JA, Badgery-Parke J, 18 March 1992)

M (1996) 88 A Crim R 387

R v Tsiaras [1996] 1 VR 398

Director of Public Prosecutions v Bannam (1985) 14 A Crim R 475

R v Adami (1989) 51 SASR 229

R v Wirth (1975) 14 SASR 291

Craft v Diebert [2004] ACTCA 15

R v Le [1995] QCA 479; [1996] 2 Qd R 516

Tilley (1991) 53 A Crim R 1

Burke v The Queen [2007] ACTCA 12

Coombe v Douris (1987) 5 MUR 442

DA Thomas, Principles of Sentencing, 2nd ed L Radzinowicz, 1979, Heinemann, London

JF Stephen, `Variations in the Punishment of Crime', Nineteenth Century, 17,1885, p 755

Sir Leslie Herron, `The Science of Sentencing', The Australian Journal of Forensic Sciences, vol 2, Issue 3, March 1970, pp80-90

Criminal Law in New South Wales, volume 1: Indictable Offences, 1971, The Law Book Company, Sydney

JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 97 of 2007

Judge: Refshauge J

Supreme Court of the ACT

Date: 1 July 2008

IN THE SUPREME COURT OF THE )

) No. SCA 97 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ALLAN GRAHAM COTTER

Appellant

AND: CATHERINE ELIZABETH CORVISY

Respondent

ORDER

Judge: Refshauge J

Date: 1 July 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

Introduction

1. It used to be possible to impose a sentence on an offender with minimal reference to legislative requirements. Even the common law provided little restriction on the role of the sentence. As DA Thomas, in his seminal work Principles of Sentencing, 2nd ed, ed L Radzinowicz, Heinemann, London, 1979 said at p 7

The judge of the late nineteenth century had in some respects a simpler task than his twentieth-century counterpart. The law provided few alternatives to custody (in the shape of imprisonment and penal servitude) and the judge's task was primarily to measure the punishment according to the gravity of the offence - or, as one author explained it, to mitigate the severity of the statutory penalty provided for the offence.

2. Nevertheless, by the early twentieth century, the UK Court of Criminal Appeal was establishing a "customary scale of punishment" (JF Stephen, `Variations in the Punishment of Crime', Nineteenth Century, 17,1885, p 755). For example, in the first volume of the Criminal Appeal Report is reported the case of Nuttall (1908) 1 Cr App R 180 where Channell J said

But the Court [of Criminal Appeal] desires, as far as possible, to standardise sentences where it has the facts before it and can judge them as well as the Court below."

3. The statutory regime was initially limited and not specially influential. Thus, an influential article by Sir Leslie Herron, then Chief Justice of New South Wales, `The Science of Sentencing', The Australian Journal of Forensic Sciences, vol 2, issue 3, March 1970, p 80, later reproduced by permission in the then leading text Watson and Purnell Criminal Law in New South Wales, volume 1 Indictable Offences (The Law Book Company: Sydney, 1971) had but one statutory reference, namely to point out that "[t]he Criminal Code prescribes five kinds of punishment - death, lash, imprisonment, fine and forfeiture" (footnote omitted). The only reference by his Honour to "Parliament's role" was that "[i]n fixing his sentence the Judge must consider the maximum and minimum, if any, laid down by Parliament."

4. Those days have changed, but change was not quick in coming. In 1988, just before self-government, Part XII (Sentences) of the Crimes Act 1900 (ACT) consisted of merely 12 sections of 8 pages. It was not until 1993 that there was a statutory prescription of the purposes for which sentences may be imposed.

5. Since then, of course, this jurisdiction, following other jurisdictions which have introduced significant sentencing regimes (see, e.g. Crimes (Sentencing Procedure) Act 1999 (NSW), Sentencing Act 1991 (Vic), Penalties and Sentences Act 1992 (Qld), Criminal Law (Sentencing) Act 1988 (SA), Sentencing Act 1995 (WA), Sentencing Act 1997 (Tas) and Sentencing Act 1995 (NT)) has enacted the Crimes (Sentencing) Act 2005. That Act consists of 147 sections and a Dictionary of 48 terms defined in it. It is supported by the Crimes (Sentence Administration) Act 2005 (ACT), a large statute of 612 sections and a Dictionary. Although most of the latter Act is only relevant post-sentence, and, thus, does not need to concern a sentencing judicial officer, there are some issues, such as the core conditions of various orders (see, for example, ss 43 and 86) with which such an officer should at least be familiar.

6. Despite the complexity of the legislative regime, there is still room for the application of common law principles of sentencing, such as the principles of totality (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59), proportionality (Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 (`Veen')), parity (Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606) and parsimony (Webb v O'Sullivan [1952] SASR 65, R v Dixon (1975) 22 ACTR 13).

7. This combines to produce complexity in sentencing and the need for sentencers to be careful when engaging in this process to ensure that they comply with the obligations to be found in statute and common law. After all, sentencing is where the coercive power of the state is exercised most commonly and intrusively against the citizen and due regard to the rule of law is not only mandated but highly appropriate.

8. This can be challenging in a busy Magistrates Court, where the judicial officer is somewhat constrained, in particular, in the sentencing remarks that he or she can make (see Bowes v McCutcheon and Anor (1999) 29 MVR 549 at 552; Acuthan and Ors v Coates and Ors (1986) 6 NSWLR 472 at 479) but a failure to comply with the obligations of the law is likely to be an error which may amount to an appellable error that justifies appellate intervention.

9. It is in this context that this appeal against sentence falls to be considered.

Jurisdiction

10. Under s 207 of the Magistrates Court Act 1930 (ACT), the Supreme Court has jurisdiction to hear appeals there specified (and, it is said in the section, "no others"). Among those specified are appeals set out in s 208 of that Act, which include an appeal from a sentence imposed by the Magistrates Court, inter alia, under Pt 3.6 of that Act by a person convicted of an offence dealt with under that Part.

11. On 23 October 2007, the Appellant, Allan Graham Cotter, adhered to his plea of guilty to the offence that he, in the Australian Capital Territory, on 19 August 2007, a repeat offender drove whilst disqualified, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT). This was a summary offence; the maximum penalty for a first offender is 50 penalty units, imprisonment for 6 months or both and for a repeat offender is 100 penalty units, imprisonment for 1 year or both. The learned Magistrate sentenced the Appellant to imprisonment for 9 months. In doing so, her Honour was acting under Pt 3.6 of the Magistrates Court Act 1930 (ACT).

12. In Kennewell v Rand [2006] ACTCA 10, the Court of Appeal said at [29] of an appeal against a decision of a Judge of the Supreme Court refusing to uphold an appeal from the sentence of a Magistrate:

Whilst it is from his Honour's decision that this appeal lies, the success or otherwise of the appeal must be measured against the Magistrate's sentence. The circumstances in which an appeal court may interfere with the exercise of the discretion reposing in the sentencing judge are well known and do not need repeating: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; and Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

13. That is to say, the Appellant must show that the sentence of the learned Magistrate was either manifestly excessive or infected by error.

The Facts

14. The facts in this case are in relatively short compass. On Sunday 19 August 2007, police on mobile patrol along Golden Grove, Red Hill in the Territory stopped a red Ford Laser driving along that road. The driver identified himself as the Appellant.

15. Police conducted a check and discovered that the Appellant had been disqualified from holding a driving licence on 8 December 2004. A warrant had also been issued on 4 August 2005 as a result of an allegation that the Appellant had breached a Community Service Order. The Appellant was arrested.

16. The Appellant appeared in the Canberra Magistrates Court on 20 August 2007 and was apparently bailed. The Appeal Papers do not disclose when he entered a plea of guilty, but the bench sheet shows he pleaded guilty on 11 September 2007 and a Pre-Sentence Report was ordered to be prepared. In any event, the record shows that when the sentencing proceedings took place on 23 October 2007, a Pre-Sentence Report had been prepared and that could only have been directed to be prepared following a plea of guilty: s 40 of the Crimes (Sentencing) Act 2005 (ACT).

17. The Appellant had an extensive criminal record, dating back to 1999. Most of the offences were traffic related, though there were 2 personal violence offences, a number of dishonesty offences and an offence of possession of cannabis.

18. Of particular concern was the fact that the Appellant had been convicted of 5 charges of driving without a licence and of 7 charges of driving whilst disqualified. On the last 2 of those offences, the Appellant had been sentenced on each occasion to 6 months imprisonment. Additionally, many of those offences were associated with charges of driving an unregistered motor vehicle and driving a vehicle in respect of which no third party insurance policy was in place.

19. The learned Magistrate, after hearing submissions from both the Appellant's solicitor and the prosecutor sentenced the Appellant to 9 months imprisonment to commence on 23 October 2007 and finish on 23 July 2008.

The Appeal

20. The Notice of Appeal was lodged by the Appellant himself. It stated as the ground of appeal that the learned Magistrate "did not consider [the Appellant's] full-time employment".

21. When the Appeal came on for hearing, Mr Paul Edmonds appeared for the Appellant and sought to amend the grounds of appeal. In the absence of opposition from the Respondent, leave was granted for the Notice of Appeal to be amended to substitute the following grounds:

(a) The sentence appealed from was manifestly excessive.

(b) In sentencing the Appellant the learned Magistrate erred, either by not giving a discount for the Defendant's plea of guilty, or, if a discount was given, by not stating what sentence would have been imposed but for the plea of guilty, in breach of s 37(2) of the Crimes (Sentencing) Act 2005.

(c) The learned Magistrate erred in treating the Appellant's offence as being close to the worst case of driving whilst disqualified.

(d) The learned Magistrate erred in treating the Appellant's prior criminal record as an aggravating factor on sentencing.

(e) The learned Magistrate erred in giving general deterrence primary emphasis on sentencing, having regard to the Appellant's dyslexia and poor literacy.

(f) The learned Magistrate erred in failing to have regard to the likely effect of the sentence upon the Appellant's dependents, as required by s 33(1)(o) of the Crimes (Sentencing) Act 2005.

22. In absence of opposition from the respondent (quite appropriately), I permitted the Appellant to amend the Notice of Appeal and to file the original and serve a copy within 7 days.

The Grounds of the Appeal

23. It is convenient to deal with the third ground of the appeal first as, in many ways, it provided a starting point for the Appellant's submission.

(c) The learned Magistrate erred in treating the Appellant's offence as being close to the worst case of driving whilst disqualified.

24. It has long been a principle of sentencing that the maximum penalty for any offence should be reserved for what has sometimes been described as "the worst cases". As long ago as 1909, Channell J in the UK Court of Criminal Appeal said on behalf of that Court in Harrison [1997] UKHL 5; (1909) 2 Cr App R 94 at 96, "The maximum sentence must, presumably as the law intended, be reserved for the worst cases."

25. Baldly stated, this could mean that the maximum could never be imposed, for it is always easy to imagine a worse case than that before the Court. As the Full Court of the Victorian Supreme Court said in R v Dumas [1988] VR 65 at 71

It is, however, always possible to imagine an offence which is worse than the one in contemplation and this fact will not necessarily lead to the conclusion that the maximum sentence cannot be imposed.

See also R v Lawrence (1980) 32 ALR 72 per Moffitt P at 110.

26. The Full Court of the Supreme Court of Western Australia has considered this matter in a number of cases. In Reynolds v Wilkinson (1948) 51 WALR 17 at 18, Dwyer CJ said:

It may be said that it is the policy of the law that the maxima are intended for the worst cases of the sort, and that first offenders should, in the absence of special malignity, be treated with greater leniency than others. But how far the punishment should recede from the maximum in any particular case is a matter for the discretion of the tribunal of trial, and a wide discretion is left to that tribunal.

27. This approach was discussed by the Full Court later in Bensegger v R [1979] WAR 65 where at 68, Burt CJ held:

A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, "for the worst cases of the sort". That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was.

28. See also per Lavan SPJ at 73-4, and Brinsden J at 79. In fact, in that case, the sentencer had imposed the maximum penalty allowable and the appeal was dismissed.

29. These cases were relied upon by the High Court in Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447 at 451-2 where the Court reiterated the phrase "the worst type of case".

30. That decision was followed in Veen where the majority judgment stated at 478

The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category. (Footnote omitted).

31. Again, the sentencing court had imposed the maximum penalty provided by law and the court did not disturb it.

32. Perhaps a helpful summary of the approach that courts could take is set out in the judgment of Lawton LJ in R v Ambler [1976] Crim LR 266 at 267 where his Lordship said

... judges should not conjure up unlikely worst possible kinds of case. They should consider the worst type that came before the courts and ask if the instant case came within the broad band of that type. When the maximum was low the band might be wide ..."

33. What then is the worst type of case of driving whilst disqualified? There is some legislative hint: as noted above at [11] the legislature has provided for an increased penalty for a repeat offence, making the legislative policy clear that repetition of the offence increases its culpability. This is common sense, but perhaps especially so in support of a regulatory regime where the offence is designed to give the regime efficacy.

34. Thus in Cardillo v Taylor (1999) 29 MVR 301, the Full Court of the Supreme Court of Western Australia upheld four sentences of 12 months imprisonment, to be served consecutively, one for each of four offences of driving whilst disqualified. The maximum penalty in that case, as it was a subsequent offence, was a fine of not less than $500 or more than $2,000 or imprisonment for not exceeding 18 months or both.

35. In upholding the sentences, the Court noted the fact that the appellant had a very bad criminal record including 16 prior convictions for driving without a licence, 10 of which were for driving whilst disqualified. The Court adopted with approval what was said by Murray J about the case of a repeat offender in Fernando v Keady (unreported, Supreme Court, WA, Murray J, 1007 of 1994, 4 March 1994 at 10:

[T]he primary consideration in respect of penalty ... was deterrence and the primary aspect of deterrence which was relevant was the personal deterrence of the appellant; the need to prevent him from continuing to commit such offences.

The court must then consider the circumstances relevant to the length of the term of imprisonment to be imposed. I have said that such offences are regarded seriously by the law but there is of course room for the consideration of the particular circumstances surrounding the commission of the offence which will bear upon the court's reaction to its severity ... The court will have regard to the purpose of the driving and whether it was associated with the commission of other offences, or whether indeed there may be some mitigatory aspect to that such as the need, short of a defence of extraordinary emergency, of a relatively compelling nature to drive in a situation of extremity. The nature of the driving itself will, I think, be relevant because it may provide a particular illustration of a point that the offender has lost the privilege to drive by reason of the incapacity to obey the traffic laws. The duration of the driving will certainly be relevant. The time when the suspension or disqualification was imposed, how recent it was, what its duration is, will be matters of relevance.

36. The nature of the driving has been the subject of consideration also. The leading case is Police v Cadd and Ors [1997] SASC 6566; (1997) 69 SASR 150 (`Cadd'). In this case, a majority of three judges held that driving whilst disqualified was to be regarded as a serious offence and that the punishment for it should be imprisonment "... in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment." Mulligan J, at 179, defined contumacious driving in terms apparently adopted by the majority as follows:

[I]t means something more than a mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it.

37. As Lander J (who was in the minority in Cadd) observed in Johns v Police (unreported, Supreme Court, SA, Lander J, No S6729, 24 June 1998) at 7:

To drive a motor vehicle in circumstances where the person is disqualified because it is convenient to do so and because it would be inconvenient not to drive probably does suggest an attitude of defiance. It rather suggests that it does not suit the driver to obey the order of the court. If the offender's attitude exhibits defiance that would suggest contumacy.

38. I note that the Shorter Oxford English Dictionary defines contumacy relevantly as "[w]ilful disobedience to the summons or order of the court" and the Macquarie Dictionary defines it relevantly, and similarly, as "wilful refusal to obey an order of a court." An act becomes contumacious, as opposed to merely wilful, when the person doing it knows that it is prohibited and has no reasonable excuse for doing it, or no reasonable belief that it can be excused: In the Marriage of Kitchener (1978) 20 ALR 535 at 541. As many of the cases suggest, contumacy is defiance - defiant disobedience to authority: Witham v Holloway (1995) 183 CLR 525 at 542; Doyle and Ors v Commonwealth and Anor [1985] HCA 46; (1985) 156 CLR 510 at 516; Australian Consolidated Press Limited v Morgan and Anor [1965] HCA 21; (1965) 112 CLR 483 at 489.

39. In my view, it is clear that the driving of the Appellant was contumacious. He well knew that he was disqualified; indeed, he had been to prison twice before for the same offence. Although before the learned Magistrate, his lawyer did submit "... he perhaps should have thought more before he actually got in the driver's seat and he indicates that that's part of his problem ... half the time he does things without thinking", it defies belief to suggest that he did not drive knowing that he was not permitted to do so. In any event, the author of the Pre-Sentence Report, who was not cross-examined, did record that the Appellant "... reported he was aware that his license (sic) was disqualified at the time he committed [the] offence."

40. His explanation for driving, only contained in the Pre-Sentence Report, and adopted by his lawyer, was that "... he was in the process of relocating his property to the family home, from the property where he had been residing, and none of his family or friends with driver's licenses (sic) were available to assist him at the time."

41. It was a case of contumacious driving as that term is understood so far as this offence is concerned.

42. In respect of these two matters, repetition and contumacious driving, it seems to me that this was a very bad case of driving. In Fernando v Keady (supra), the Court there held that other matters were also considered to be relevant. These included:

(i) whether the driving was associated with the commission of other offences;

(ii) the duration of the driving; and

(iii) the time when the disqualification was imposed.

43. None of such matters were relevant to the offence committed by the Appellant. They are, however, what might be called secondary or ancillary factors relevant to the offence. While their absence here may take the offence out of the worst category of cases for which the penalty is prescribed, it does not seem to me that they must necessarily always be present for a case to fall within that category. It is clear that the essential elements for culpability are defiant breach of the court order shown by contumacious driving and repetition. Thus, repeated breach by contumacious driving would at some point bring an offence within the worst category of such cases.

44. In this case, the ongoing repetition of driving while disqualified in blatant defiance of the court order must come close to being within the worst category of cases, but has probably not yet quite reached that stage.

45. That, however, does not dispose of this ground of appeal. The next question is whether her Honour sentenced the Appellant as though the offence was in that category.

46. At first sight, this cannot be so. The maximum penalty is the imposition of a fine of 100 penalty units and of imprisonment for 1 year. It appears that some courts ignore the possibility of imposing a fine as well as the imprisonment element in considering the maximum penalty (see, e.g. Cardillo v Taylor (supra) at 306) but it seems to me that is to ignore the express legislative provision. Thus, the penalty imposed on the Appellant was below, perhaps well below, the maximum penalty. Even taking the imprisonment by itself, the sentence was only three-quarters of the maximum.

47. The learned Magistrate did not say in her Honour's reasons for sentence that it was an offence in the worst category. Mr Edmonds, who appeared for the Appellant, arrived at this assertion by an interesting argument. He pointed out that the Appellant had pleaded guilty, that this had to be taken into account and that by doing so, the discount would have meant that the starting point for the sentence would have been or approached very close to the maximum.

48. Section 35 of the Crimes (Sentencing) Act 2005 (ACT) deals with how the Court must approach a plea of guilty where the Court "considers that there is a real likelihood that it will sentence the offender to imprisonment." Relevantly, it provides

35. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:

(a) the fact that the offender pleaded guilty;

(b) when the offender pleaded guilty, or indicated an intention to plead guilty;

...

(3) The court may impose a lesser penalty (including a shorter non-parole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.

(4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution's case for the offence was overwhelmingly strong.

49. Mr Edmonds argued that the amount by which the penalty would have been reduced to take account of the plea ("the discount") that the section, he suggests, must be applied would have meant that, before the discount, the sentence would have been at or so near the maximum penalty that it could only have been justified if it was, contrary to my finding, within the worst category of cases.

50. For reasons set out below, I reject that argument. At best, the discount in this case would have been in the nature of some weeks, perhaps a month at the absolute maximum. That would still leave the starting point well below the maximum penalty, especially taking into account the possibility of a fine as well. In R v Szeto [1999] NSWCCA 296, Wood CJ at CL considered at [11]-[13] that a penalty of between 80 and 100 per cent of the maximum, having taken into account the subjective features of the case including the plea of guilty, is indicative of a worst category case. This case would not have met this criterion.

51. This ground fails.

52. Closely related to this ground is ground (b).

(b) In sentencing the appellant the learned Magistrate erred, either by not giving a discount for the Defendant's plea of guilty, or, if a discount was given, by not stating what sentence would have been imposed but for the plea of guilty, in breach of s 37(2) of the Crimes (Sentencing) Act 2005.

53. I have referred above to the relevant provision of s 35 of the Crimes (Sentencing) Act 2005. Section 37 is in the following terms:

37. Reduction of sentence - statement by court about penalty

(1) This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence - guilty plea) or section 36 (Reduction of sentence - assistance to law enforcement authorities).

(2) The court must state -

(a) the penalty (including any shorter non-parole period) it would otherwise have imposed; and

(b) if the lesser penalty is imposed under section 36 - the reason for the imposition of the lesser penalty.

54. It is true that the learned Magistrate did not make one reference to the Appellant's plea of guilty. Given the constraints on a Magistrate, (see Lumby v Cooper [2008] ACTSC 53 at [19]), not much may be required to discharge the obligation under s 35(2)(a) of the Crimes (Sentencing) Act 2005 (ACT) to do so. An express reference is usually sufficient: Moutrage v Haines [2008] ACTSC 36 at [25]. Acknowledgement by the sentencer of the submission by the prosecution that the plea will be taken into account may also be sufficient and this would be a helpful way in which the prosecution could assist a sentencer to avoid appellable error. Certainly there is high authority to the effect that a failure to refer to a plea of guilty should ordinarily be taken that the sentencer did not give it weight. Spigelman CJ said at [52] in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 395:

As part of the duty of sentencing judges to give reasons for their decisions, express reference to the fact that consideration has been given to [a plea of guilty] ought to be included in reasons on sentence

...

The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations.

55. As I have noted above, the Territory, like NSW, has a statutory obligation to take into account a plea of guilty (and the time it is made or intimated). I do not consider there is a real difference between taking the plea into account (the statutory obligation) and giving it weight (per Spigelman CJ).

56. The learned Magistrate, therefore, was under a statutory obligation to take into account the plea of guilty. This is not a duty to give a discount: Carpenter v Purcell [2008] ACTSC 34 at [18] (`Carpenter'). The actual effect on the sentence may be minimal; indeed, in this case, the prosecution evidence in support of the charge was overwhelming and s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) would entitle the learned Magistrate to give very little if any discount for the plea. Nevertheless, her Honour was obliged to take it into account and this at least required an express reference to it.

57. If, of course, her Honour did impose a lesser sentence, she was required by s 37 to state the undiscounted penalty that otherwise would have been imposed. It is not easy to determine whether a failure to do so is an error that vitiates a sentence. Elsewhere in the Act, there are obligations to give reasons and these are accompanied by provisions that expressly state that the failure to do so does not invalidate the order made (see, e.g. ss 78, 82, 89 and 117). These have been discussed in Wilson v The Queen [2007] ACTCA 25; they are, however, different, in that they require reasons which s 37 does not in terms require. Applying the canon of statutory construction "expressio unius exclusi alterius est" would suggest, however, that the failure would invalidate the sentence. On the other hand, the maxim has to be applied with care and is not of universal application (Houssein and Anor v Under Secretary, Department of Industrial Relations and Technology (NSW) and Anor [1982] HCA 2; (1982) 148 CLR 88 at 94) and may not apply when dealing with different requirements, as here: Re Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 50. My impression is that failure to comply with s 37 would not invalidate a sentence, but I do not need to decide this.

58. In my view, the learned Magistrate did fail to take into account the plea of guilty as required by s 35.

59. That is, however, not quite that of which the appeal ground complains; it complains that no discount was given (or, if given, not specified). In my view, however, the statutory obligation is clear: the plea of guilty must be taken into account and at the very least a reference to it is required.

(d) The learned Magistrate erred in treating the appellant's prior criminal record as an aggravating factor on sentencing.

60. Much was made by the learned Magistrate of the prior record of the Appellant; he had, after all, as I have noted at [18], 7 convictions for driving whilst disqualified and 5 convictions for driving without a licence.

61. The way in which prior criminal conduct is dealt with in sentencing is somewhat complex. Every sentencer will receive from the prosecution a list of the offender's prior convictions, if any. In imposing a sentence, the courts are clearly entitled to use this information, if for no other reason than that a number of the statutory purposes of sentencing are directed at reducing recidivism: s 7 of the Crimes (Sentencing) Act 2005 (ACT) - "(b) to prevent crime by deterring the offender ... (d) to promote the rehabilitation of the offender."

62. Further, as here, the statute creating some offences make it clear that a repeated offence is to be regarded as more serious and attracts a greater penalty.

63. Indeed, the High Court has expressly provided that prior offences are relevant. In Veen, the Court expressly said at 477 that the "... antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence ...". The Court cautioned that "... it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence."

64. The court continued:

The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and the protection of society may all indicate that a more severe penalty is warranted.

65. In effect, an offender should not be punished twice for crimes - once when sentenced for them and again when sentenced for subsequent crimes. Nevertheless, prior criminality can result in loss of leniency because of evidence of a "continued attitude of disobedience" Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at [14]- [15]; Bowes v McCutcheon (supra) at 551. Given that deterrence is the primary purpose of punishment for offences such as the one committed by the Appellant, the criminal record of the offender is highly relevant: SA Police v Bastow; SA Police v Watson; SA Police v Lehmann (1996) 24 MVR 276 at 278, 279.

66. I can see no error in the approach her Honour took to the Appellant's prior offending:

(e) The learned Magistrate erred in giving general deterrence primary emphasis on sentencing, having regard to the appellant's dyslexia and poor literacy.

67. As I have noted above, the authorities are all one way in holding that in an offence such as this, deterrence is the primary purpose of punishment It is, thus, a little difficult to see how this ground could be maintained.

68. The submissions of the Appellant, however, referred to the fact that the Appellant suffered from dyslexia. This was recorded in the Pre-Sentence Report and referred to by the Appellant's lawyer in submissions to the learned Magistrate. It was said that as a result the Appellant suffered learning difficulties.

69. It was put in oral submissions by Mr Edmonds in the following way

Well, firstly, we say, your Honour, it comes within the general rule that where an offender comes before a court suffering either from some form of mental illness or mental dysfunction and we would say dyslexia would have to come in - within either one of those definitions of mental illness or mental dysfunction, even if it is only mild, that generally speaking, that courts have taken the view that it is not appropriate to use such offenders as vehicles for general deterrence.

70. The statement of principle, however, seems too broad and not in accordance with authority. The complexity of the issue was well articulated by Brennan J (when a judge of the Federal Court) in Channon v R [1978] FCA 16; (1978) 20 ALR 1 at 4-5

Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe.

71. Without analysing the jurisprudence in detail, it appears that this principle applies in the following circumstances:

1. The offending behaviour may be causally or otherwise connected to the offending behaviour, as in Parnis v The Queen [1993] FCA 624; (1993) 49 FCR 304 at 306-7. Thus, it may, for example, reduce the moral culpability of the offender: Hurd (1988) 38 A Crim R 454 at 461. This may require a lesser penalty to be imposed proportionate to the culpability of the offender.

2. It may affect the weight to be accorded to general deterrence. In Parnis v The Queen (supra), at 305, the Full Court of the Federal Court adopted, with a reservation about whether it applied only to "severe" intellectual handicap, the statement of the principle set out in R v Letteri (unreported, NSWCCA, Gleeson CJ, Sheller JA, Badgery-Parke J, 18 March 1992) which was set out as follows (at 14):

The principle then is clear enough. It is correctly stated as follows - that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise.

This is often expressed as recognising that the mentally disordered or intellectually handicapped offender is not considered to be "an appropriate medium for making an example to others"; R v Anderson [1981] VR 155 at 160; Scognamiglio (1991) 56 A Crim R 81 at 85-6. This is a mark of a civilised society. Of course, this relates to general deterrence and not to specific deterrence which would only be an appropriate purpose for punishment were the offender to be able to appreciate and respond to it. Even so, it does not necessarily require a sentencer to ignore general deterrence or give it only minimal weight.

3. Mental disorder or intellectual incapacity may affect the kind of sentence that is imposed and the conditions under which it is served: M (1996) 88 A Crim R 387 at 389.

4. It may mean that the sentence imposed will weigh more heavily upon the offender than upon a prisoner not so affected: R v Tsiaras [1996] 1 VR 398 at 400.

72. In this case, personal deterrence must, as noted in the authorities, also play a role in the exercise of the sentencing discretion. I note that in Director of Public Prosecutions v Bannam (1985) 14 A Crim R 475, the Court of Criminal Appeal in Victoria did, in this context, distinguish between personal and general deterrence to only the latter of which did it apply the principles outlined in subpara 2 of [71] above.

73. Nevertheless, in this case the learned Magistrate, no doubt frustrated at the failure of past sentences, did opine of the Appellant:

He has little regard for various court orders, there is no option, in my view, absolutely no option for the sake of deterrence, personal deterrence seems to have very little impact on the man, so it might not - sending him to gaol again might not personally deter him, but certainly punishment is a very relevant consideration and general deterrence. There has to be a message sent out to the community that people who come before the court on their 13th drive whilst disqualified or drive whilst unlicensed offence have to receive a sentence of imprisonment. So, there is no option, in my view, other than to impose a sentence of imprisonment.

74. No connection was made before the learned Magistrate, however, between the Appellant's dyslexia and the offending. Mr Edmonds did say, on appeal, that the Appellant's dyslexia had been an impediment to him obtaining a licence, he having sat the relevant driving test four times. There was, also, no evidence as to whether the Appellant's dyslexia had any effect on his ability to drive or to drive safely. No conclusion could be drawn, therefore, one way or the other.

75. Nevertheless, it does not seem to me that this condition, though clearly a mental dysfunction, is of a kind, or so related to the offence, that general deterrence should play no, or, indeed, little part in the sentence to be imposed. I can see no error in this respect and this ground fails.

(f) The learned Magistrate erred in failing to have regard to the likely effect of the sentence upon the appellant's dependents, as required by s 33(1)(o) of the Crimes (Sentencing) Act 2005.

76. Section 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) requires a sentencer to "consider ... the probable effect that any sentence or order under consideration would have on any of the offender's family or dependents" so far as such matters "are relevant and known to the court".

77. Here, there were minimal submissions on this aspect before the learned Magistrate. The Appellant's lawyer made the following submissions:

[The Appellant] indicates to me he has a new partner who has been with him for a number of months now, he is in steady employment, he is also receiving - he receives $450 per week net in his hands after tax and he says from that he pays his mother about $200 per week. He also pays child support to his ex partner for the five-year-old child. That child is currently with him at the moment because his mother is in hospital.

Normally he has him on alternate weekends, but that has become more frequent now. He indicates to me that sometimes the child will stay with him during the week as well. The child is now five years old, he is a pre-schooler and his current partner, who is also in court to support him today drives whenever there is a need for him to be driven socially or to the shops. He is also - his father drives back and forth to work so there is no need for him to drive and that is reflected in the fact that there has been no further ... (inaudible) ... apart from the August matter.

78. The common law appears to have allowed a very limited role for the effect of a sentence on the offender's dependants. Thus in R v Adami (1989) 51 SASR 229 at 232-3, Bollen J said:

It has always been the law that the effect of a sentence of imprisonment on dependants is not normally to be taken into account in fixing the sentence. There is no doubt, of course, that the incarceration of almost anybody causes adverse effect, often financial, on dependants. Certainly it does for every married man, every father, who is sent to prison. If that were to be taken into account in the normal run of things there would be no complaints of overcrowding in our prisons. The Court may take effect on dependants into account to ameliorate a penalty in exceptional cases. For all these propositions I refer to R v Wirth (1975) 14 SASR 291, R v Moffa (No 2) (1977) 16 SASR 155 and R v Amuso (1987) 138 LSJS 53.

79. This approach has been widely followed. For example, R v Wirth (supra) was cited with approval or followed in T (1990) 47 A Crim R 29 at 40 and approved in Edwards (1996) 90 A Crim R 510 at 516-7; Burns (1994) 71 A Crim R 450 at 455; R v M H [2007] SASC 41; (2007) 168 A Crim R 557 at 563-4; McAree v Barr [2006] TASSC 37 at [21] and R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451 at 460-1; R v Adami (supra) itself was applied in R v Sinclair (1990) 108 FLR 370 at 382, Munungurr v The Queen [1994] NTSC 14; (1994) 4 NTLR 63.

80. The ACT Court of Appeal, by which, of course, I am bound, has taken a somewhat different course. In Craft v Diebert [2004] ACTCA 15, Crispin P and Connolly J referred to R v Sinclair (supra) and then said

This decision suggested that a similar provision in the Commonwealth Crimes Act was not intended to change the common law principle that the effect on dependents would not be taken into account save in exceptional circumstances. With very great respect to their Honours, we must say that we are quite unable to accept that a legislative requirement to take such a factor into account can be transliterated into a prima facie requirement to ignore it merely because that would reflect the approach previously recognised at common law. A similar issue arose for consideration by the Queensland Court of Criminal Appeal in the subsequent case of R v Tilley (1991) 53 A Crim R 1 at 3 where, after referring to the aspects of retribution, deterrence and rehabilitation, Thomas J referred to the hardship that would result if the respondent were to be parted from her two and a half year old daughter and explained:

Courts, of course, take account of such matters in a number of ways but are not overwhelmed by them. It is well recognised that very often a prison sentence will result in equal hardship to persons other than the offender. In the case of a male, his wife and children may be the ones who suffer because they lose a father and a person who provides financial support. In the case of a female, it may means the temporary loss of a mother. It is common that hardship and stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors ...

If we may say so, with respect, his Honour's remarks reflect the sad but not uncommon experience of sentencing judges and magistrates. All too often the need to adequately punish the offender and to deter other like-minded people from committing similar offences leaves little, if any, scope for leniency based upon the adverse effect of the sentence upon the offender's children and/or other dependents. In that sense it might, perhaps, be said that this factor will have a significant impact upon sentencing for very serious offences only in exceptional cases. However, such an observation should not be misconstrued as a legal principle which, in our opinion, could not be accommodated within the language of s 342 of the Crimes Act, let alone the perhaps more broad discretion provided by s 6 of the Periodic Detention Act.

81. As Thomas J also said in the case of R v Le [1995] QCA 479; [1996] 2 Qd R 516 at 522:

While [the fact that the offender until sentence cared for her eight-year-old daughter and was eight month's pregnant] evoke sympathy, the hardship or stress shared by the family of the offender cannot be allowed to overwhelm factors such as retribution and deterrence (Tilley (1991) 53 A Crim R 1, 3-4, 6).

82. On the basis of these authorities, then, it seems to me that the approach that should be taken is that the effect of a sentence on the family and dependants of the offender should be taken into account, but will only result in any significant leniency where the effect is more severe or prejudicial than the inevitable and usual consequence of the imposition of a proper sentence or where it will not overwhelm the proper statutory purposes for which the sentence should be imposed.

83. No submissions of any substance were directed before the learned Magistrate to show that the sentencing of the Appellant to a term of imprisonment would impose such a burden on the present partner of the Appellant that would require leniency in this case.

84. The evidence was sparse; there were clearly consequences for his ex-partner in that for the duration of his imprisonment, she would not be receiving the $200 per week she currently had from him. Similarly, their 5-year-old child would not spend alternate weekends with the Appellant. These are the sad, inevitable consequences of the Appellant's offending and the Court's proper response to them.

85. This ground also fails.

(a) The sentence appealed from was manifestly excessive.

86. The written submissions on this ground really had two limbs. The first was effectively the same as ground (c), namely the alleged error of assuming that this was "the worst case" of driving. I have dealt with that above at [24] to [52].

87. The second limb really amounted to a submission that immediate full-time imprisonment was not necessarily required for a case such as this.

88. So far as the second limb is concerned, it seems to me to misunderstand the approach that the courts take to this offence. As King CJ said in Coombe v Douris (1987) 5 MVR 442 at 443:

The offence of driving while under disqualification is a most serious offence ... Its seriousness consists in the defiance of the law which it manifests and in the fact that it nullifies the effect of the order of disqualification which is imposed for the protection of the public. The effectiveness of orders of disqualification from holding or obtaining a driver's licence depends upon observance of them by the persons disqualified. If they are treated with contempt and ignored by the persons affected, the orders of the court designed to deter offenders and to protect the public are rendered ineffective.

89. This is not in conflict with the approach suggested by Crispin J in Selles, Rollings, ACT Director of Public Prosecutions v Bailey [2000] ACTSC 111 where his Honour,

first referring to Cadd, said at [21]

In this Territory sentences must be imposed only for the purposes set out in s 429 of the Crimes Act 1900 and a Court must have regard to the factors set out in s 429A of that Act. I do not accept that the balancing exercise which must be undertaken by a sentencing Magistrate in complying with these sections should be subject to some further prima facie rule. However the considerations to which I have referred will obviously require a sentencing magistrate to give serious consideration to the imposition of a sentence of imprisonment and it may be expected that in many if not most cases the need to protect the public may require such a sentence.

90. His Honour then added at [22]

As Mr Archer pointed out, in the present case the Chief Magistrate had said that "there are not that many people go to gaol for driving whilst cancelled". ... I do not understand the Chief Magistrate to have been expressing any opinion that sentences of imprisonment should be imposed only in rare cases. However, the comment should not be permitted to create an impression that most people charged with driving whilst cancelled can expect to escape a prison sentence. On the contrary, anyone committing an offence of that nature should understand that there is a very real likelihood that he or she will be sent to prison as a consequence.

91. None of this suggests that a sentence of immediate, full-time imprisonment for the eighth offence of driving whilst disqualified is excessive, much less manifestly excessive. Indeed, a sentencer which did not include imprisonment in a case such as this would, unless there were particular circumstances not apparent in this case, be properly regarded as manifestly inadequate.

92. Given the number of prior offences, the stated purpose of the driving, the plea of guilty and the subjective circumstances of the offender, it does not seem to me that 9 months imprisonment is excessive and certainly not manifestly excessive.

Conclusion

93. In the result, I have found that none of the grounds of appeal have been made out but that the learned Magistrate did fail to take into account the plea of guilty as her Honour was statutorily required to do.

94. In Carpenter, Penfold J held at [24] that, despite a Magistrate falling into error in failing to mention the Appellant's guilty pleas in considering an appropriate sentence, the sentences actually imposed appeared to be appropriate and that imposition of another sentence was not appropriate. This led her Honour to dismiss the appeal.

95. The same position could well be said to pertain here and I was initially inclined to follow that course.

96. In Carpenter, the Appellant's lawyer did refer to the plea of guilty, though the learned Magistrate did not do so. Here, however, neither prosecutor nor defence counsel mentioned the plea and the stage of the proceedings at which it was entered. Indeed, even the Pre-Sentence Report does not refer to a plea of guilty; it has no requirement to do so and I do not suggest it should, though its very production necessarily implies that there has been a finding of guilt: s 40 of the Crimes (Sentencing) Act 2005 (ACT). Certainly the learned Magistrate made no mention of a plea of guilty at all, though her Honour did make reference to the Pre-Sentence Report.

97. One matter does trouble me in addition. The Pre-Sentence Report noted that the Appellant was assessed as suitable for Periodic Detention. The Report stated:

The offender has signed an undertaking to comply with the offender's periodic detention obligations under the Crimes (Sentence Administration) Act 2005. He has been assessed as suitable, however his previous non-compliance with such orders gives little confidence that he would complete such an order.

98. As Mr Edmonds pointed out, the Appellant has never breached an order for periodic detention. He has, however, breached other court orders such as recognizances and suspended sentences. The reference to "non-compliance with such orders" is ambiguous; it is, on reflection, intended to mean court orders which involve conditional liberty or alternatives to imprisonment. The same phrase is used in relation to a Community Service Work Condition (of a Good Behaviour Order) and clearly the "such" there refers back to an earlier reference to "[t]he offender's history of non-compliance with Court imposed orders". It is possible that the learned Magistrate was misled into believing that the Appellant had previously breached a Periodic Detention Order. I do note, however, that the Appellant's lawyer did not refer to or suggest that periodic detention would be appropriate and there is no actual evidence of her Honour considering that alternative. The challenge is not strong.

99. The legislature has made a plea of guilty an important feature of the sentencing process. It is a matter that all counsel should have in mind in sentencing. Most importantly, courts must obey the legislative directive to take such an important matter into account. See Burke v The Queen [2007] ACTCA 12 at [5].

100. In all the circumstances, I will uphold the appeal.

101. Mr Edmonds submitted that, if I did so, I should hear some further short evidence on sentencing. With hindsight, it would have been better were that to have been adduced

at the hearing so that final orders could have been made when this judgment is delivered. That would have been most convenient. Nevertheless, I shall hear the evidence and re-sentence the Appellant.

I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 30 June 2008

Counsel for the plaintiff: Mr Paul Edmonds

Solicitor for the plaintiff: Mark Fleming Criminal Lawyer

Counsel for the defendant: Ms Katrina Mackenzie

Solicitor for the defendant: Director of Public Prosecutions (ACT)

Date of hearing: 3 June 2008

Date of judgment: 1 July 2008