Kilvington v Burgoyne [2005] NTSC 46

PARTIES:	KILVINGTON, Kim Thomas
	
	v

	BURGOYNE, Robert Roland

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION

FILE NO:	JA 38 of 2004 (20420025)

DELIVERED:	18 August 2005

HEARING DATE:	12 August 2005

JUDGMENT OF:	RILEY J

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST SENTENCE

Appellant pleaded guilty to driving a motor vehicle whilst not being the holder of a licence contrary to s 32(1)(a) Traffic Act (NT) and driving an unregistered motor vehicle contrary to s 33(1)(a) Traffic Act (NT) – sentencing magistrate mistaken as to maximum penalty for the offence – whether penalty should be imposed without proceeding to conviction – s 8 Sentencing Act (NT) – despite significant matters of mitigation conviction is appropriate.

Traffic Act (NT) s 32, s 33
Sentencing Act (NT) s 6, s 8

The Queen v Raggett, Douglas and Miller (1990) 50 A Crim R 41, applied
Lowndes v The Queen (1999) 195 CLR 665 at 671-672, applied
Markarian v The Queen (2005) 215 ALR 213 at 222, considered.
Toohey v Peach (2004) 143 NTR 1 at 4, considered.

REPRESENTATION:

Counsel:
	Appellant:	C. McDonald QC
	Respondent:	J. Duguid

Solicitors:
	Appellant:	Salmon & Sinoch Lawyers
	Respondent:	Office of the Director of Public Prosecutions

Judgment category classification:	B
Judgment ID Number:	ril0522
Number of pages:	10

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Kilvington v Burgoyne [2005] NTSC 46
No JA 38 of 2004 (20420025)

	IN THE MATTER OF the Justices Act

	AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Alice Springs

	BETWEEN:

	KILVINGTON, Kim Thomas
	Appellant

	AND:

	BURGOYNE, Robert Roland
	Respondent

CORAM:	RILEY J

REASONS FOR JUDGMENT

(Delivered 18 August 2005)

[1]	On 19 October 2004 the appellant pleaded guilty to two offences under the Traffic Act.  The first was that he drove a motor vehicle on a public street whilst not being the holder of a licence to do so, contrary to s 32(1)(a) of the Traffic Act, and, the second, that he drove an unregistered motor vehicle on a public street, contrary to s 33(1)(a) of the Traffic Act.
[2]	The offences arose out of events which occurred on 1 September 2004.  On that day the appellant was driving a motor vehicle with Queensland registration along Bath Street in Alice Springs.  He was stopped by police who noticed the Queensland registration.  He stated that he was the owner of the vehicle and that he was now a permanent resident of the Northern Territory.  When asked how long the vehicle had been in the Northern Territory he advised that it had been in the Territory since “before February”.  When asked why he was driving the vehicle when it was deemed to be unregistered he said:  “I wasn’t sure how long I was going to stay here”.
[3]	Upon request the appellant produced a Queensland driver’s licence and, when asked why he was driving without a current Northern Territory licence, he replied:  “As I said before, I didn’t know how long I would be staying, if I would be staying at all.  I am staying here now so I will change them over”.
[4]	The appellant is a legal practitioner who had previously practised in the Northern Territory over a number of years.  The court was told that he was a 47-year old who came from Queensland and was a person of good character.  The court was informed that the motor vehicle was at the time registered and insured in Queensland and that the appellant was “fully licensed with a Queensland licence up to 2005”.  The submission to the court was that the appellant had not transferred the registration of the motor vehicle nor obtained a local driving licence because his tenure in the Northern Territory was, at that time, on a month to month basis.  He had been “coming and going from the Northern Territory for some 20 years and he has come and gone about 20 times, mostly in the capacity as a locum solicitor”.  The appellant acknowledged that he should have attended to these matters and that his conduct “was the wrong thing to do”.
[5]	The court was informed that he had been frank with the police and had pleaded guilty.  The appellant had subsequently disposed of the vehicle and he was no longer driving.  On his behalf it was said that he was very embarrassed about his appearance in court, that he is of good character, has worked consistently throughout his life and has an excellent employment record.  He is a family man with two children for whom he is financially responsible.  A submission was then made inviting the court to consider refraining from imposing a conviction and seeking to keep any fine to a minimum.
[6]	In the course of discussion his Worship enquired of counsel the relevant maximum penalty.  He said:  “The maximum fine is not $1000, not $2000 but $10,000.  Am I right?”  Counsel for the appellant incorrectly said:  “Yes, your Worship”.  The maximum penalty was in fact $2200.  It seems his Worship may have confused this offence with the more serious offence provided for in s 34 of the Act of driving an improperly insured vehicle for which the maximum penalty is a fine of what was, at one time, $10,000 and is now $11,000.  The confusion is apparent from the reference by his Worship to the Motor Accident (Compensation) Scheme when discussing the seriousness of the offence.
[7]	The sentencing remarks of the learned magistrate were brief and it is convenient to set them out in full:
“You have pleaded guilty to these charges today.  I don’t need to give you the lecture about the law, you know it as well or probably better than I in relation to these things.  It seems to me that probably, apart from anything to do with uncertainty, it was a matter of whether you could be bothered to make the change and go to the expense of changing over the circumstances.
I have listened to your counsel about whether I should convict you in relation to the two charges.  I don’t think there is anything particular about your case that is different from other first offenders in relation to traffic matters, other than of course, you are a lawyer who normally represents people.  In the circumstances, whilst I say you are a man of good character and are still of good character, this is an offence which normally carries with it a conviction and I don’t think that you are so different so as there should be no conviction.
In the circumstances therefore you are found guilty and convicted.  There will be an aggregate fine of $500 with a victim levy of $80.”
[8]	The appellant now appeals against that sentence on the following grounds:
“1.	THAT the penalty imposed by the Learned Chief Magistrate of a conviction and an aggregate fine of $500.00 was manifestly excessive in the circumstances, and tainted by error in that the Learned Magistrate misdirected himself in accepting that the maximum fine for a breach of Section 33(1) of the Traffic Act was $10,000, whereas the maximum fine provided for under the said Act is 20 penalty units, the equivalent of $2,200.
2.	THAT the Learned Chief Magistrate erred in law in recording a conviction in the circumstances of the particular Appellant and the sentencing guidelines contained in Section 8 of the Sentencing Act, in that it was open to the Learned Chief Magistrate pursuant to section 7(e) of the Sentencing Act to order the Appellant to pay a fine, without recording a conviction against him, having regard especially to his character, antecedents, age and the extent, if any, to which the offence is of a trivial nature.”
Principles to be applied
[9]	The general principles applicable to an appeal against sentence are well known.  The presumption is that there is no error in the sentence and an appellant must demonstrate that error occurred in that the learned sentencing magistrate acted on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the facts:  The Queen v Raggett, Douglas and Miller (1990) 50 A Crim R 41.  It is not enough that the court on appeal may have imposed a different sentence:  Lowndes v The Queen (1999) 195 CLR 665 at 671-672.
Ground 1
[10]	The submission made on behalf of the appellant in relation to ground 1 was that the learned sentencing magistrate proceeded under the mistaken view that the maximum penalty for the offences, or at least one of them, was $10,000.  This was correctly conceded to be the case by counsel for the respondent.  The misunderstanding of his Worship was re-enforced by the agreement of counsel before him that such was the case.  The maximum penalty was in fact the lesser amount of $2200.  In Markarian v The Queen (2005) 215 ALR 213 at 222 Gleeson CJ, Gummow, Hayne and Callinan JJ said of maximum penalties:
“… careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”
[11]	His Worship clearly proceeded under a misunderstanding of a salient feature of the applicable facts.  The appeal must be allowed and the sentence set aside.  I must proceed to re-sentence the appellant in light of the correct maximum penalty as applicable to this offending.
Re-sentence
[12]	For the purposes of re-sentencing, counsel referred again to the matters that had been placed before the Court of Summary Jurisdiction.  The only additional information provided to me was that the appellant is presently suffering an illness that prevents him from working.  He is unemployed at this time.
[13]	Counsel requested this court to consider imposing a penalty but without proceeding to conviction.  This was the submission that had been made to the learned sentencing magistrate and rejected by him. The approach to such a submission is guided by s 8 of the Sentencing Act which is in the following terms:
“(1)	In deciding whether or not to record a conviction, a court shall have regard to the circumstances of the case including –
(a)	the character, antecedents, age, health or mental condition of the offender;
(b)	the extent, if any, to which the offence is of a trivial nature; or
(c)	the extent, if any, to which the offence was committed under extenuating circumstances.
2.	Except as otherwise provided by this or any other Act, a finding of guilt without the recording of a conviction shall not be taken to be a conviction for any purpose.”
[14]	In determining the character of an offender, by virtue of s 6 of the Act, the court may consider the following:
“(a)	the number, seriousness, date, relevance and nature of any previous findings of guilt or convictions of the offender;
(b)	the general reputation of the offender; and
(c)	any significant contributions made by the offender to the community.”
[15]	The application of this section was considered by the Court of Appeal in Toohey v Peach (2004) 143 NTR 1 where the court said (at 4):
“[11]	The primary focus of attention in considering whether or not to record a conviction is upon all the circumstances of the case, the enumerated factors being some of them: cf Cobiac v Liddy (1969) 119 CLR 257.  The result of declining to record a conviction and dismissing a complaint is to free the offender of the immediate legal consequences of his having committed the offence:  Cobiac v Liddy at 274 Windeyer J.  Before considering the exercise of the discretion, there must be found some mitigating aspect arising from the circumstances of the case, whether by reference to one or more of the factors enumerated in s 8(1) or otherwise.  The opening words of s 12(2) of the Penalties and Sentences Act 1992 (Qld) are drafted in a similar way to s 8(1) of the Territory Act, albeit the enumerated matters are in a different form.  In R v Brown; Ex parte Attorney-General [1994] 2 Qd R 182 Macrossan CJ held (at 185):
Where the recording of a conviction is not compelled by the sentencing legislation, all relevant circumstances must be taken into account by the sentencing court.  The opening words of s 12(2) of the Act say so and then there follow certain specified matters which are not exhaustive of all relevant circumstances.  In my opinion nothing justifies granting a general predominance to one of those specified features rather than to another.  They must be kept in balance and none of them overlooked, although in a particular case one, rather than another, may have claim to greater weight.
[12]	With respect, we are of the opinion that the same approach applies to s 8(1) of the Sentencing Act.”
[16]	The submission made on behalf of the appellant is that the appellant should be fined without proceeding to conviction.  Reliance was placed upon the criteria referred to in s 8 of the Sentencing Act.  The appellant is aged 47 years, he has no prior convictions and he is a man of good character.  I note that there is no suggestion that a conviction will in any way impact upon the ability of the appellant to practice his profession or, indeed, impact directly upon his life in any other way.  Put at its highest a conviction is a matter of great personal and professional embarrassment to him.
[17]	It was pointed out by counsel for the appellant that this was not a case where the appellant was in fact unlicensed or where his motor vehicle was in fact unregistered.  Both of those matters had been attended to in Queensland some time before the offending occurred.  In that sense the case differed from the usual circumstances of offences of the kind where offenders hold no licence to drive at all and where motor vehicles are not registered in any jurisdiction.
[18]	However it cannot be said that this was a trivial offence or that the offending occurred under any extenuating circumstances.  The appellant is a legal practitioner who, as the court was informed, has practised in the Territory on and off for a period of some 20 years.  His practice has included appearing in courts in relation to matters such as this.  He is not only assumed to know the law but, in his circumstances, must have known the law.  Indeed, the submission made on his behalf was that he turned his mind to the requirements to take out a Territory licence and to transfer registration but concluded:  “What is the point in me changing it over when I may be going back and I will have to go through the process again?”  That may have been an excuse if he had been in the Territory for a short time but, as his Worship was informed, the vehicle arrived in the Territory “before February” and the offending occurred in September, a period of at least seven months.  This was not a case of an oversight but, rather, of a deliberate choice to disobey the law.
[19]	Of further concern is the fact that the vehicle apparently did not meet Territory standards.  It was being driven on the streets of Alice Springs in that unacceptable condition.  The Court of Summary Jurisdiction was informed that, when looked at after the offending, “the vehicle would require substantial repairs and he made an economic decision not to transfer the registration over and have those repairs done … it was just simply going to cost him a lot of money to go over the pits”.  Had the appellant complied with his obligations the substandard condition of the vehicle would have been recognised at a much earlier time.
[20]	The circumstances of the offending and of the offender give rise to the need for a penalty that provides general deterrence.  I regard this aspect of the sentencing considerations as calling for the recording of a conviction.  Personal deterrence is not significant in light of the embarrassment suffered by the appellant and the clear indications that he is unlikely to offend in this way again.
[21]	I have revisited the matters put to the Court of Summary Jurisdiction and those put to this Court by way of mitigation.  In my view, notwithstanding the significant matters of mitigation put on behalf of the appellant, a conviction is appropriate in all of the circumstances.  The appellant will be convicted on each count and there will be an aggregate fine of $300 with a victim levy of $80.
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