SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
Bishop v Houlahan; Bishop v Lawrence
Citation:
[2016] ACTSC 384
Hearing Date(s):
4 July, 25 July and 21 September 2016
Decision Date:
23 December 2016
Before:
Penfold J
Decision:
SCA 37 of 2015: Mr Bishop’s purported appeal against the
licence disqualification period operative under s 33 of the Road
Transport (Alcohol and Drugs) Act was incompetent and of no
effect.
SCA 38 of 2015: Mr Bishop’s appeal against the convictions
recorded and sentences imposed by the Chief Magistrate in
respect of CC15/512, 513, 514, 541 and 542 is dismissed.
Catchwords:
CRIMINAL LAW – APPEAL AND NEW TRIAL – Appeal –
General Principles – offence of driving with a level four
concentration of alcohol in breath as a repeat offender –
purported appeal from default disqualification period operative
under s 33 of the Road Transport (Alcohol and Drugs) Act –
appeal incompetent – effect of incompetence on stay of
disqualification under s 216 of the Magistrates Court Act.
CRIMINAL LAW – APPEAL AND NEW TRIAL – appeal from
convictions and sentences imposed by Magistrate – pleas of
guilty entered to one offence each of failing to leave a licensed
premises and hindering a public official and three offences of
resisting a public official – whether appellant denied procedural
fairness in relation to sentencing proceedings – appeal
dismissed.
Legislation Cited:
Court Procedures Rules 2006 (ACT), r 5173
Crimes Act 1900 (ACT), s 334
Criminal Code 2002 (ACT), s 361(1)
Liquor Act 2010 (ACT), s 138(1)
Magistrates Court Act 1930 (ACT), ss 208, 216, 218, 219B,
div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19(1),
33
Road Transport (Driver Licensing) Regulation 2000 (ACT), s 3A
Road Transport (General) Act 1999 (ACT), s 61B
Supreme Court Act 1933 (ACT), s 20
Cases Cited:
Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157
Senderowski v Mothersole [2013] ACTSC 217
Parties:
Anthony Eric Bishop (Appellant)
SCA 37 of 2015: Justin James Houlahan (Respondent)
SCA 38 of 2015: Troy Andrew Lawrence (Respondent)
Representation:
Counsel
Self-represented (Appellant)
Mr S McLaughlin (both Respondents)
Solicitors
Self-represented (Appellant)
ACT Director of Public Prosecutions (both Respondents)
File Numbers:
SCA 37 of 2015; SCA 38 of 2015
Decisions under appeal:
Court:
ACT Magistrates Court
Before:
Chief Magistrate Walker
Date of Decision:
26 March 2015
1. Case Title:
Justin James Houlahan and Anthony
Eric Bishop
Court File Number:
2. Case Title:
CC14/10873
Troy Andrew Lawrence and Anthony
Eric Bishop
Court File Numbers: CC15/00512; CC15/00513;
CC15/00514; CC15/00541;
CC15/00542
PENFOLD J:
Introduction
1.
Anthony Bishop has appealed against orders made in the Magistrates Court on
26 March 2015.
Sentences in the Magistrates Court
2.
Mr Bishop was dealt with by Chief Magistrate Walker for a number of different offences:
(a)
In respect of a drink-driving offence, committed on 5 November 2014 as a
repeat offender and involving a level 4 concentration of alcohol in his breath in
contravention of s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977
(CC14/10873), Mr Bishop was convicted on a plea of guilty, fined $600 to be
paid in instalments of $30 per fortnight, and disqualified from holding or
obtaining a driver’s licence for five years; that period was reduced under s 61B
of the Road Transport (General) Act 1999 to take account of the period for
which Mr Bishop’s licence had been suspended since the date of the offence,
being 5 November 2014.
(b)
In respect of a charge of failing to leave licensed premises when directed, in
contravention of s 138(1) of the Liquor Act 2010 (ACT) (CC15/512), he was
convicted on a plea of guilty, and a good behaviour order was made for 12
months, with core conditions only.
(c)
In respect of one charge of hindering a public official in the exercise of his
function as a public official in contravention of s 361(1) of the Criminal Code
2
2002 (ACT) (CC15/513) (associated with the licensed premises charge), and
three charges of resisting a public official in the exercise of such function in
contravention of s 361(1) of the Criminal Code (CC15/514, 15/541, 15/542)
(relating to the same licensed premises, but committed two days later),
Mr Bishop was convicted on pleas of guilty, and sentenced as follows:
3.
(i)
CC15/513: 18-month good behaviour order, subject to a probation
condition for 18 months, requiring Mr Bishop to submit to drug and
alcohol testing and to attend assessments, programs or counselling as
directed, particularly in relation to alcoholism (including by residential
rehabilitation);
(ii)
CC15/514: 18-month good behaviour order, subject to conditions as for
CC15/513, and 60 hours community service to be completed within
12 months;
(iii)
CC15/541: 18-month good behaviour order, subject to conditions as for
CC15/513, and 30 hours community service concurrent with community
service ordered in respect of CC15/514;
(iv)
CC15/542: 18-month good behaviour order, subject to conditions as for
CC15/513, and 30 hours community service concurrent with community
service ordered in respect of CC15/514.
Thus the total penalty imposed on Mr Bishop, not including court costs, the Victims
Services Levy and the Criminal Injuries Compensation levy, amounted to:
(a)
a fine of $600;
(b)
disqualification from holding or obtaining a driver licence for five years;
(c)
a 12-month good behaviour order;
(d)
four concurrent 18-month good behaviour orders with 18-month probation
conditions relating to addressing alcohol dependence; and
(e)
60 hours community service (the first 30 hours to be performed concurrently
under three separate sentences), to be performed within the first 12 months
after sentence.
Filing of appeal
4.
Mr Bishop, at that stage unrepresented, filed notices of appeal on 24 April 2015. Both
notices were prepared by Mr Bishop, and the nature of the appeals was not necessarily
clear.
5.
The notice of appeal in respect of the drink-driving offence was expressed as an
appeal “from all of the order”, the order being described as “the appellant was
convicted and his driving licence disqualified for a period of 5 years”.
However,
although the appeal was expressed as, in part, an appeal against conviction, the rest of
the notice indicates that the appeal was in reality a sentence appeal: the ground of
appeal was that the sentence was manifestly excessive, and the orders sought were
that the appeal be allowed, the disqualification period be set aside and “a
disqualification period imposed according to law be substituted”. That is, there was no
3
identifiable challenge in the notice to the finding of guilt or the recording of the
conviction.
6.
In respect of the other offences, the “orders” set out in the notice consist only of the
penalties imposed on conviction, and the appeal is described as an appeal “from all of
the orders above”. At one stage during the hearing of these appeals, however,
Mr Bishop did suggest that he would like his convictions set aside.
Progress of appeal
7.
The appeals progressed very slowly from that point.
8.
There was an unsuccessful attempt to arrange legal assistance to Mr Bishop via the
Pro Bono Clearing House, and Mr Bishop remained unrepresented.
9.
In June and July 2015 there were several mentions before the Deputy Registrar that Mr
Bishop did not attend. He then attended directions hearings before the Deputy
Registrar in August and September; orders were made for Mr Bishop to file various
documents, and the hearing was listed for 3 February 2016.
10.
On 3 February 2016, Mr Bishop sought an adjournment due to personal circumstances
which had impeded his preparation for the hearing and also made it difficult for him to
attend the hearing. With the consent of the respondent, the hearing was vacated and
re-listed for 19 May 2016.
11.
Shortly before 19 May, Mr Bishop again sought the vacation of the hearing date, this
time in a phone call to the Registry which was followed up by the provision of a medical
certificate. Again with the respondent’s consent, the hearing was adjourned to 4 July
2016.
12.
In late June Mr Bishop sought an adjournment of the 4 July hearing, explaining that
there were various obstacles to his attendance at that hearing. He was advised that
unless proper evidence of his problems was provided, the hearing would proceed, and
if he did not appear there was a risk that his appeal might be dismissed.
13.
On 4 July Mr Bishop appeared at the hearing. At that point, the respondent withdrew
an application for the appeal to be struck out for want of prosecution.
14.
Mr Bishop had not filed any of the submissions or other material that had been ordered
during the process of readying the matter for a hearing. In connection with his
application for the adjournment of the 4 July hearing, however, he had been advised
that his submissions could be given orally, and any further evidence to be admitted on
appeal could be given by him as sworn oral evidence.
15.
Accordingly, when the hearing began, Mr Bishop made oral submissions. Much of the
content of his submissions was factual material that could have been the subject of
evidence, but at the 4 July hearing the respondent did not require Mr Bishop to give
any sworn evidence. When the hearing was adjourned at the end of the afternoon,
Mr Bishop was given leave to file written submissions setting out the material he had
wanted to put before the Magistrate at the sentence hearing.
16.
Mr Bishop did not file written submissions, but on 18 July 2016 he did file a further
document indicating an intention to adduce further evidence. The hearing of the appeal
resumed briefly on 25 July, at which point Mr Bishop was again given leave to file
written submissions. Again Mr Bishop did not file written submissions within the
4
timeframe allowed, but on 23 August he filed a letter of explanation setting out the
difficulties he had been having obtaining evidence upon which to base his submissions.
17.
On 21 September 2016, the hearing resumed again. Mr Bishop made further oral
submissions, and tendered a reference from Dr Tom Faunce, which was admitted
without objection. The respondent made brief submissions about the competence of
one of Mr Bishop’s appeals, and about the Court’s powers in the event that the appeal
was found to be incompetent. At the end of the hearing I reserved my decision.
The offences
18.
The circumstances of the offences were set out in the several police statements of
facts relied on in the Magistrates Court.
19.
I did not understand from Mr Bishop’s submissions that he disputed any of the events
recorded, although he did dispute the police interpretation of his behaviour in certain
respects, and he indicated a desire to adduce evidence of his dealings with police on
other occasions to provide the context in which the offences occurred.
20.
The statement of facts for the drink-driving offence was as follows:
On 28 May 2009, Anthony Eric Bishop, born ...1958, the defendant now before the Court
appeared before Magistrate Doogan in the ACT Magistrates Court in answer to an
impaired driving charge occurring on 16 March 2009 - refer CC2009/3453. The defendant
was subsequently convicted of the charge and as a result he is a repeat offender for this
matter now before the Court.
About 6.25pm on Wednesday 5 November 2014, police were conducting mobile patrol on
The Valley Avenue, Gungahlin, ACT and saw a red coloured Mazda 121 sedan with ACT
registration YYP905 travelling east on The Valley Avenue.
Police followed the vehicle on The Valley Avenue, Gozzard Street, Anthony Rolfe Avenue,
Gribble Street and Ernest Cavanagh Street. The vehicle turned right off Ernest Cavanagh
Street into the driveway of Cellar Brations liquor store. The vehicle was stopped outside the
liquor store and police approached the driver now known to be the defendant.
The defendant exited his vehicle as police approached. The defendant was uncooperative
and belligerent toward police and attempted to leave the area. The defendant was
subsequently taken into custody.
Police could smell the strong odour of intoxicating liquor coming from the defendant. The
defendant was required to supply a sample of his breath. The defendant refused to supply
a sample of his breath.
The defendant was conveyed to City Police Station for the purpose of undergoing a breath
analysis.
At City Police Station the defendant identified himself to police and produced his ACT
Class 'C' driver licence, number 2031884. Upon sighting the licence, police were satisfied
the image on the licence matched the defendant's appearance. The defendant is subject to
a Blood Alcohol limit of 0.05 grams of alcohol per 210 litres of breath.
About 7.23pm on Wednesday 5 November 2014, the defendant provided a sample of his
breath that was sufficient for analysis and the result of the analysis was 0.174 grams of
alcohol per 210 litres of breath (level 4 reading).
The defendant was served with an Immediate Suspension Notice No. 05112014/3157,
suspending his ACT driver licence.
Police spoke with the defendant and learned he had driven to The Valley Avenue where he
consumed wine in a regular size coffee cup. The defendant had no passengers in the
vehicle at the time of the incident. When stopped by police, the defendant was travelling to
5
Coles Gungahlin to busk for money to purchase food. Police learnt the defendant has no
fixed abode and is currently living in his vehicle.
Police hold the opinion the defendant was well under the influence of alcohol. The
defendant's breath smelt strongly of intoxicating liquor. His balance was unsure and he was
unsteady on his feet. The defendant was uncooperative when dealing with police. He was
belligerent and abusive toward police during the incident.
At the time of the incident, the weather was clear; the bitumen road surface was in good
condition. Vehicular and pedestrian traffic was medium to heavy as the defendant drove
through the CBD of Gungahlin on Gozzard Street.
The Valley Avenue, Gozzard Street, Anthony Rolfe Avenue, Gribble Street and Ernest
Cavanagh Street Gungahlin are roads in the Australian Capital Territory as defined by the
Road Transport Legislation.
21.
The statement of facts for the charges of failing to leave licensed premises and
hindering a public official was as follows:
About 3.10pm on Friday 1 January 2014, Police were called to attend First Choice Liquor,
Hinder Street, Gungahlin in the Australian Capital Territory (ACT), in relation to an
aggressive male at the location. Police were dressed in full Police uniforms and performing
functions of Officials of the ACT.
Upon arrival Police observed a male, now known to be Anthony Eric Bishop, born ... 1958,
the defendant now before the court. This male was arguing with the Store Manager,
Jessica Cotter. Ms Cotter pointed towards the defendant and the door and said "Can you
please leave now."
The defendant pointed towards her and started yelling.
At this time Police approached the male and said "Anthony, you have been asked to leave
the premises, leave now."
The defendant then turned towards Ms Cotter, pointed at her in a threatening manner and
started to yell obscenities. Police took hold of the defendant's trolley and said "Anthony,
you have to leave now, do not threaten the staff here."
The defendant pulled the trolley back and started yelling at Police.
Acting Sergeant Lawrence took hold of the defendants right arm and said "Anthony, you
are under arrest for failing to leave a licensed premises."
The defendant pulled his arm away from the grip of Acting Sergeant Lawrence and turned
towards him. Constable Gribble took hold of the defendant's left arm and said "Stop
resisting, come on let's go."
The defendant pulled both of his arm in front of him in an attempt to break the hold of
Police. Police escorted the defendant outside of the premises, at this time he started to
[violently] resist their efforts to restrain him, he attempted to twist his arms out of the grip,
he dropped his weight to the ground and tried to break free.
Police again told the defendant to stop resisting.
The defendant said words to the effect of "I'm not resisting little man."
Police attempted to take the defendant to the ground, but due to his movements it was not
successful. At this time the defendant twisted his arm and broke free of Acting Sergeant
Lawrence, Acting Sergeant Lawrence feared that the defendant would assault either
himself or Constable Gribble, so the defendant was subjected to a 1 second dose of
oleoresin capsicum spray, which had immediate effect in incapacitating the defendant.
Police handcuffed the defendant and kept yelling and being belligerent towards Police.
Checks of Police indices confirmed the defendant's identity.
6
First Choice Liquor is an On Licenced premises with a current ACT Liquor licence, as such
it is a licenced premises within the ACT.
22.
The statement of facts for the three charges of resisting a public official was as follows:
On 2 January 2015, Anthony Eric BISHOP born ... 1958, the Defendant now before the
court entered into a bail undertaking at the Australian Capital Territory (ACT) Regional
Watch House. The conditions of that bail undertaking were;
1. NOT TO APPROACH WITHIN 100 METRES OF FIRST CHOICE LIQUOR,
GUNGAHLIN, ACT, OR ANY OF THE STAFF OF FIRST CHOICE LIQUOR.
2. NOT TO CONSUME ALCOHOL IN PUBLIN OR BE INTOXICATED IN A PUBLIC
PLACE.
3. TO SUBMIT TO BREATH ANALYSIS UPON REQUEST OF A POLICE OFFICER.
4. REPORT TO GUNGAHLIN POLICE STATION EVERY TUESDAY, THURSDAY AND
SATURDAY BETWEEN SAM AND 8PM.
About 8.30pm on January 2 2015, the Defendant attended First Choice Liquor and
attempted to talk to the staff at the premises. He was refused entry and left the location.
About 9:05am on January 3 2015, Police attended First Choice Liquor, Hinder Street,
Gungahlin ACT, in relation to a previous matter. Police parked their fully marked Police
vehicle in front of the store on Hinder Street. Police were wearing full Police uniform and
were performing functions of a Territory official of the ACT.
As Police were talking to staff at First Choice Liquor, Police observed the Defendant walk
past the store. Police immediately recognised the defendant. As the Defendant walked past
he pointed in the direction of staff inside the store and appeared to yell something towards
the staff of the premises.
Police exited the store and approached the Defendant. Acting Sergeant Troy Lawrence
approached the Defendant and told him that he was breaching his bail conditions by
walking past the store within 100 meters. The Defendant immediately became verbally
aggressive towards Acting Sergeant Lawrence and Constable Elias Nikias.
The Defendant stated he was only walking past. Again Acting Sergeant Lawrence informed
the Defendant that this was a breach of bail conditions. At this time Acting Sergeant
Lawrence formed the belief that the Defendant would continue to breach his bail
conditions.
Acting Sergeant Troy Lawrence placed his right hand on the Defendant's left shoulder and
informed him he was under arrest for breaching his bail conditions. The Defendant
shrugged away from the grip of Acting Sergeant Lawrence and started to walk in circles
away from him.
The Defendant became extremely argumentative and belligerent towards Police, Constable
Elias Nikias placed his right hand on the Defendant's left shoulder and informed the
Defendant, again, that he was under arrest for breaching his bail conditions.
The Defendant moved away from Police and started to swear obscenities at Police. The
Defendant stated to move towards the road and then circle back and away from Police.
The Defendant shrugged away from Constable Nikias and continued to yell and abused
Police. He started attempting to walk away quickly from Police.
Acting Sergeant Lawrence and Constable Nikias directed the Defendant to stop as he was
under arrest. Constable Nikias approached the Defendant and with his right hand took hold
of the Defendant's right forearm and took the Defendant to the ground.
The Defendant was lying face down and Acting Sergeant Lawrence has took hold the
Defendant's arms and attempted to place him in handcuffs. The Defendant continued to
yell and abuse Police, he attempted to pull his hands in front of his body in an attempt to
stop Police from being able to handcuff him. Police managed to place handcuffs on the
male and restrain him.
7
The Defendant was in breach of condition one of his bail conditions.
The Defendant was then placed in the rear of the Police caged vehicle and transported to
the Regional Watch House.
23.
I shall refer to all the offences other than the drink-driving offence as the First Choice
Liquor offences.
The Magistrates Court hearing
24.
All the charges came on for hearing on 26 March 2015. At the beginning of the hearing,
a psychological report prepared on behalf of Mr Bishop was tendered; the Magistrate
noted that it was dated 16 March 2015, and asked why it had not been provided earlier.
Counsel for Mr Bishop, a Legal Aid lawyer, noted that he had only been assigned to
Mr Bishop’s matter on the previous day, and that the lawyer previously representing
Mr Bishop had left the practice a week before.
25.
The 13-page psychological report included just over six pages of substantive
assessment. It noted:
(a)
that Mr Bishop is affected by a depressive disorder from time to time;
(b)
that as at 7 March 2015 there was no evidence of “depressive
symptomatology”, but there was evidence of a severe Alcohol Use Disorder;
(c)
that there was no scope for the ACT Civil and Administrative Tribunal (ACAT)
to make a psychiatric treatment or community care order in respect of Mr
Bishop because “without self-induced intoxication, Mr Bishop currently does
not present a risk to himself or others”;
(d)
that Mr Bishop has “deep-seated issues with police” dating back to 2008, that
his perception is that he is ill-treated by AFP members, and that in late 2014
his “fixation on ill-treatment by police ... seemed to be bordering on delusional
thinking”;
(e)
that his argumentative and belligerent behaviours are likely to emerge from
the combination of severe depressive symptoms and his alcohol use disorder.
26.
Relying on this report, counsel for Mr Bishop sought that the second set of charges,
those in respect of the First Choice Liquor offences, be dismissed unconditionally
under s 334 of the Crimes Act 1900 (ACT). He noted the psychologist’s view that
ACAT would have no basis to make a relevant order in relation to Mr Bishop, but said
that dismissing the charges would be appropriate if her Honour could be assured that
Mr Bishop would continue to accept help from his treating practitioner. Her Honour
pointed out that she could only impose such a condition if she sentenced Mr Bishop,
not if she dismissed the charges unconditionally.
27.
Mr Bishop then told her Honour that he hadn’t done anything to pursue residential
rehabilitation as recommended by his psychologist, because he had been “waiting on
all this confusion to be settled”, but that he had “an interesting relationship with alcohol
at present” and, in relation to the possibility of attending residential rehabilitation, that
he was “definitely willing to explore ...”.
28.
At that point her Honour gave her decision on the s 334 application. She accepted that
Mr Bishop suffered from a mental impairment which she described as alcohol use
syndrome, and noted that he also suffered a depressive disorder but had not shown
8
symptoms of that when assessed by his psychologist. She addressed the matters
specified in s 334, and concluded that it was not appropriate to dismiss the charges
unconditionally.
29.
30.
Mr Bishop was then asked to enter pleas to the outstanding matters, and he pleaded
guilty to the five First Choice Liquor offences; he had entered a plea of guilty to the
drink-driving offence on an earlier occasion. Counsel then made submissions in
mitigation of sentence, which:
(a)
provided some explanation of the offences along the same lines, although not
in as much detail, as that provided by Mr Bishop in appeal submissions;
(b)
noted that Mr Bishop intended to take further steps in relation to residential
rehabilitation; and
(c)
indicated that any period of licence disqualification would be difficult for
Mr Bishop, although it would not prevent him working as a teacher.
Her Honour enquired about Mr Bishop’s financial position, and noted that he had
obtained accommodation and was no longer living in his car. She noted the importance
of residential rehabilitation in furthering his rehabilitation. During her Honour’s remarks,
there was the following exchange:
HER HONOUR: In terms of your need for a licence, it has been put to me that it may
impact upon your future ability to obtain work other than as a school teacher. Any impact at
the moment is speculative and therefore I am not satisfied that there is anything put before
me which would warrant a reduction in the automatic period of disqualification before the
court.
MR BISHOP: I hear that and that – sorry to interrupt. The nature of my teaching work and
also during work – the teaching work is on a relief basis and sometimes you can get called
up about an hour before the day starts, so that’s basically wiped out. And my action was in
circumstances and depression and all that sort of stuff has wiped out that possibility and
I’m contrite and nothing like hindsight to be the great provider of insight. But, yes, so in
terms of that relief teaching possibility, without a car it’s pretty difficult but – and teaching is
– and engagement with education is a passion of mine but, you know, whatever is
determined is determined obviously and I will learn through these situations. I might need
to change career focus, whatever. But sorry to interrupt.
HER HONOUR: It was important that I hear what you say, but there is nothing that you
have said which has altered my observations to this point.
31.
Her Honour then noted that deterrence both general and specific was significant, as
was the need to protect the community and to hold Mr Bishop accountable for his
actions, and continued:
I am satisfied that it is appropriate to deal with these matters in the following way.
Convictions are recorded on each. In respect to the drink driving matter you will be
disqualified from holding or obtaining a driving licence for a period of five years. The period
for which your licence was already suspended will be taken into account in determining
that, so it will in fact be four years and nine months from today in terms of the
disqualification period.
32.
Her Honour then imposed the sentences already set out at [2] above for the First
Choice Liquor offences.
Compliance with sentences
33.
It seems that, despite having filed his appeals, Mr Bishop has performed his community
service, and might have paid his fine. There is nothing before me suggesting that he
9
has failed to comply with his probation requirements more generally. Mr Bishop said
that he has also abstained from driving since he was sentenced, because it did not
occur to him that the sentence might have been stayed by his appeal. This was not
challenged by the respondent, and is consistent with Mr Bishop’s compliance with other
aspects of his sentences, in particular that he had completed 60 hours of community
service.
Grounds of appeal
34.
The grounds of appeal specified in the notice of appeal were:
(a)
in relation to the drink-driving offence:
The term of the disqualification was manifestly excessive.
(b)
in relation to the First Choice Liquor offences:
Due to the very limited consultation time with Legal Aid lawyers, I was unable to fully
explain my situation; nor was I given an opportunity to make a statement in court that
allowed anywhere near a full explanation of events/circumstances surrounding the
incidents.
Oral submissions
35.
During the several days on which this matter was heard, Mr Bishop made extensive
and discursive oral submissions, not all of which were consistent with his notices of
appeal.
36.
As to the offences, Mr Bishop offered the following explanations:
37.
(a)
That his previous drink-driving offence, committed in 2009, when a blood
alcohol level of 0.227 had been recorded, had occurred when he was asked to
leave a club by an aggressive bouncer, and instead of sleeping in his car as
he had intended, he drove off because he believed that the bouncer would
soon finish his shift and he was scared of being found in his car by the
bouncer. He was stopped by police who had been called to the club as a
result of his interaction with the bouncer.
(b)
That in the period leading up to the commission of the offences, and at the
time that he was sentenced in the Magistrates Court, he had been homeless
and mentally unwell.
(c)
That the offence of failing to leave licensed premises when directed had been
committed when he had asked for an explanation of the direction to leave the
premises, and that it was only later that he discovered that the relevant
legislation provided that no explanation needed to be given.
(d)
That when police came to the licensed premises, they had humiliated and
assaulted Mr Bishop, and had interpreted his behaviour as resisting his
removal when in fact it amounted only to him recoiling from them in horror that
was generated by his previous bad experiences with police.
As to the hearing in the Magistrates Court, Mr Bishop said:
(a)
that he had only had a few minutes before the hearing to explain matters to a
new legal aid solicitor, despite previously having dealt with two other legal aid
solicitors at earlier stages of the proceedings;
10
38.
(b)
that the Magistrate had been given a copy of the long report referred to at [25]
above, which Mr Bishop himself did not have a copy of, and her Honour spent
only a few minutes reading it;
(c)
that at the hearing, the legal aid solicitor had told Mr Bishop that he didn’t
need to say anything, which meant that he did not have a chance to explain
his situation to the Magistrate;
(d)
that he considered that the Magistrate should have accepted, in relation to the
drink-driving offence, that he would have taken steps towards dealing with his
alcohol abuse, of the kind canvassed during the sentencing hearing, to protect
the community from the impact of his alcohol abuse (however, the transcript
shows that Mr Bishop did not offer any relevant undertaking or suggest that
alcohol rehabilitation should have been a condition of the relevant good
behaviour orders); and
(e)
that Mr Bishop did not dispute the findings of guilt in relation to the First
Choice Liquor offences (especially noting that he had pleaded guilty after his
application for the matters to be dismissed under s 334 of the Crimes Act had
been refused), but that he was distressed by not being allowed to explain his
“back-story” by way of sentencing submissions.
As to the appeals, Mr Bishop said:
(a)
that he had not been aware that the filing of his appeals would have stayed his
sentences; accordingly he had not been driving since the sentencing, and
hoped to be eligible for the interlock system by May 2017;
(b)
that he would provide fresh evidence in due course (eg from friends, or he
could try to find the police officer who had been rude to him only two hours
before he was caught drink-driving);
(c)
that he did not regard the 12-month or 18-month good behaviour orders, or the
60-hour community service order, or the $600 fine, as excessive, but that he
would like the convictions set aside;
(d)
that he sought the dismissal of the charges on the grounds of his history of
police persecution;
(e)
that he needed to be able to drive so that he was able to get back to relief
teaching, which was liable to require him to travel to a school at a moment’s
notice;
(f)
that he suffers from recurring mental illness (generally a form of depression)
and that this affects his reactions to stressful events.
The First Choice Liquor offences – consideration
39.
Mr Bishop’s appeal ground in relation to the First Choice Liquor offences seems to
raise a claim that he was not given procedural fairness, but it is not clear who, in his
opinion, failed to provide that procedural fairness. His oral submissions suggested that
the real problem in relation to the hearing was that his access to a lawyer provided by
the Legal Aid Office was insufficient to enable him to explain his case to that lawyer,
although he was also disappointed about not having the opportunity to make extended
submissions himself, or perhaps to give evidence, before the Chief Magistrate.
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40.
Mr Bishop’s other submissions, effectively about the substance of the offences with
which he had been charged and to which he had pleaded guilty, did not seem to raise
any specific doubts about the appropriateness of his pleas of guilty or the recording of
convictions, although they might have been relevant in mitigation of sentence.
41.
It became apparent in the course of the three days of hearings that Mr Bishop’s main
complaint in relation to the First Choice Liquor offences was that he had been treated
unsympathetically by the various police officers involved in the incidents and, in
particular, that they had failed to recognise the impact of his mental illness on his
behaviour, ignored his mental illness, or treated his mental illness as a proper basis on
which to taunt or abuse him.
42.
There may be some truth in Mr Bishop’s assessment, and certainly one can
understand why he might have felt that police were treating him as at least a nuisance,
and possibly as a deliberate trouble-maker, rather than as a person with a genuine
illness.
43.
On the other hand, police have a difficult and often stressful job to do, and it is also
easy to see how Mr Bishop’s behaviour, and perhaps in particular his tendency to
employ condescension and sarcasm at inappropriate moments (displayed from time to
time during the appeal process, especially in the early stages of that process), might
have tried their patience considerably.
44.
Her Honour’s sentences were generally lenient, and indeed Mr Bishop conceded as
much in oral submissions, describing the fine imposed as “fair” and responding to the
question of whether he considered the 12-month good behaviour order to be excessive
with “[n]o, not at all, given in the light of the law I was guilty”.
45.
I cannot see any evidence that Mr Bishop was disadvantaged by the apparently brief
period in which he had to instruct his legal aid lawyer. Nor can I see any breach of
procedural fairness, or any other flaw, in her Honour’s approach to the sentencing for
these offences. The appeal in relation to the First Choice Liquor offences is accordingly
dismissed.
The drink-driving offence – consideration
46.
The appeal in relation to the drink-driving offence raises a different set of issues. That
appeal, which I have already concluded was intended only as a sentence appeal (at [5]
above) involved a claim that the disqualification period was manifestly excessive. The
first and fundamental question is whether an appeal lies against the five-year licence
disqualification resulting from her Honour’s treatment of the offence.
Competence of appeal
47.
Counsel for the respondent submitted that I do not have jurisdiction to determine the
appeal against the licence disqualification period imposed in relation to the drink-driving
offence, and nor do I have power to make any consequential orders in relation to the
operation of the licence disqualification.
48.
The respondent’s argument was:
(a)
that her Honour had indicated, in the comments set out at [30] and [31] above,
that she could see no reason warranting a reduction in the automatic period of
12
licence disqualification provided for in s 33 of the Road Transport (Alcohol and
Drugs) Act;
49.
(b)
that an appeal did not lie to the Supreme Court from the operation of the
legislation imposing a default disqualification period (Burow v The Queen
[2015] ACTCA 61; 11 ACTLR 157); and
(c)
therefore, that the provision conferring power to make a range of orders in
connection with an appeal from the Magistrates Court (s 218 of the
Magistrates Court Act 1930 (ACT)) also does not apply.
The relevant provisions of the Magistrates Court Act were relevantly as follows:
Division 3.10.2
208
Appeals in criminal matters
Appeals to which div 3.10.2 applies
(1) Each of the following appeals is an appeal to which this division applies:
...
(d) an appeal from a sentence or penalty imposed by the Magistrates Court
by a person convicted of an offence dealt with by that court under this
Act, section 90A, part 3.6 or part 3.7, or under the Crimes Act, section
374 or section 375, whether or not the person appeals against the
conviction in relation to which the sentence or penalty was imposed;
...
(g) an appeal from an order of the court to disqualify a person from holding
or obtaining a driver licence under an automatic disqualification provision
under the Road Transport (General) Act 1999, division 4.2 (Licence
suspension, disqualification and related matters), if the order is for a
longer period than the minimum.
Note Automatic disqualification provision—see the Road Transport
(General) Act 1999, s 61A.
216
Stay of execution pending appeal in certain cases
(1) If a person (the appellant) appeals under this division—
(a) the enforcement or execution of the decision, conviction, order, sentence
or penalty that is the subject of the appeal is stayed until the appeal is
decided or is abandoned or discontinued; and
(b) if the appellant is in custody—the appellant may, if not detained for
another reason, apply for bail under the Bail Act 1992.
...
218
Orders by Supreme Court on appeals
(1) On an appeal to which this division applies, the Supreme Court may—
(a) confirm, reverse or vary the conviction, order, sentence, penalty or
decision appealed from; or
(b) give the judgment, or make the order, that, in all the circumstances, it
considers appropriate, or refuse to make an order; or
(c) set aside the conviction, order, sentence, penalty or decision appealed
from, in whole or in part, and remit the proceeding to the Magistrates
Court for further hearing and decision, subject to the directions the
Supreme Court considers appropriate.
13
(2) A judgment or order of the Supreme Court under subsection (1) (a) or (b) has
effect as if it were a decision of the Magistrates Court and may be enforced by
the Magistrates Court accordingly.
50.
In Burow v The Queen, counsel for the appellant submitted before the Court of Appeal
that s 208(1)(d), or in the alternative s 208(1)(g), of the Magistrates Court Act gave the
Supreme Court jurisdiction to determine an appeal against a sentence where the
Magistrate had declined to vary the default disqualification period in relation to a
prescribed concentration of alcohol offence. The Court said:
31. We are not persuaded s 208(1)(d) gave the court the relevant jurisdiction. As [counsel
for the appellant] correctly said, the issue when attempting to find jurisdiction there is
whether the Magistrate imposed the disqualification period. In our view what the Magistrate
did was to decline to vary the period imposed by statute. It was the statute which imposed
the disqualification period, not the magistrate. The fact that the magistrate consciously
decided not to reduce the period of disqualification does not detract from that reasoning.
...
34. We are not persuaded that s 208(1)(g) provided the relevant jurisdiction. The
Explanatory Statement shows it may have been the intention of the author of the
Explanatory Statement for the amendment to s 208(1)(g) to provide appeal rights to an
offender where a magistrate has declined to vary a period of disqualification. But that is not
what the statute says (or indeed what the Explanatory Statement unequivocally says). As
the plurality said in Project Blue Sky v ABA at [78]:
...the duty of a court is to give the words of a statutory provision the meaning that the
legislature is taken to have intended them to have.
35. In Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55;
(2012) 250 CLR 503 at [39] the Court said:
Legislative history and extrinsic materials cannot displace the meaning of the statutory text.
36. Here the statutory text in s 208(1)(g) shows an intention to give a right of appeal:
...from an order of the court to disqualify a person from holding or obtaining a driver licence
under an automatic disqualification provision...if the order is for a longer period than the
minimum.
37. In the case of the appellant, no such order was made. The clear meaning of the statute
is to provide rights to those subjected to orders by the Magistrates Court to reduce
automatic periods of disqualification. There may be very good reason why the legislature
has chosen to restrict rights of appeal only to those who are subject to orders.
51.
The Court in Burow v the Queen further held that neither s 20 of the Supreme Court
Act 1933 (ACT), nor s 219B of the Magistrates Court Act, vested the Supreme Court
with jurisdiction to determine an appeal against a disqualification period where a
sentencing Magistrate declines to depart from a default disqualification period.
52.
I accept, having regard to her Honour’s comments quoted at [30] and [31] above, that
the Chief Magistrate, like the sentencing Magistrate in Burow, declined to vary the
default disqualification period provided by legislation. Instead, her Honour simply
allowed the legislation to apply the default disqualification period to Mr Bishop’s
offence, and the disqualification period was therefore five years.
53.
Accordingly the appeal, so far as it concerns the appellant’s disqualification period, is
not one to which div 3.10.2 of the Magistrates Court Act applies.
54.
This means that Mr Bishop’s appeal against the licence disqualification was
incompetent.
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Subsequent amendments
55.
I note that since the decision in Burow v The Queen, the default disqualification
provisions have been amended to provide that an automatic driver licence
disqualification is taken to be an order of the court for the purposes of s 208(1)(g) of the
Magistrates Court Act (see ss 32(4) and 33(4) of the Road Transport (Alcohol and
Drugs) Act). However, those new provisions did not come into force until 25 February
2016, and did not apply when Mr Bishop lodged his appeal documents in April 2015.
Accordingly, in relation to this matter I am bound by the decision in Burow v The
Queen.
Effect of incompetence of appeal
56.
The impact of my conclusion that Mr Bishop’s appeal against his licence
disqualification was incompetent is significant in this case. This is because roughly two
years has elapsed since Mr Bishop was charged with this offence and his licence was
suspended, roughly 18 months of which has elapsed since Mr Bishop initiated these
appeals. During this time, Mr Bishop says, he has not driven, and has accordingly
served nearly enough of his disqualification period to be eligible for the Alcohol
Interlock Program, which I understand permits a disqualified driver who has completed
a specified part of his or her disqualification period to drive a vehicle fitted with an
Interlock device (see Part 3A of the Road Transport (Driver Licensing) Regulation 2000
(ACT)). The respondent has not challenged Mr Bishop’s claim that he has not driven
since the drink-driving conviction was recorded and the five-year licence
disqualification took effect under s 33 of the Road Transport (Alcohol and Drugs) Act.
57.
The respondent does not dispute that a competent appeal stays the sentence appealed
against (Magistrates Court Act, s 216). In this case, since I have identified the appeal
as only an appeal against the disqualification period, it would not have stayed the
orders made in the Magistrates Court.
58.
If Mr Bishop’s appeal had been competent, his licence disqualification period, which
commenced on 5 November 2014, would have been stayed from the filing of his notice
of appeal on 23 April 2015 until that appeal was finally determined, with the intervening
period to be effectively added at the end of the original disqualification period.
59.
I understand that the respondent further accepts that if I were to dismiss a competent
appeal against a licence disqualification period, I would have power to make orders
adjusting the term of the disqualification to take account of any period during which the
appellant is accepted as having refrained from driving (Senderowski v Mothersole
[2013] ACTSC 217 at [23]).
60.
However, counsel says, if the appeal is not competent, there is no power to make
consequential orders after finding it incompetent. The Court Procedures Rules 2006
(ACT) specifically providing for the making of costs orders after a finding that an appeal
is incompetent (eg r 5173) may lend some weight to this submission, although the
provisions may have been made explicit only because, unlike most costs orders, the
orders that may be made have a punitive aspect. Counsel for the respondent said:
Now, ... I understand your Honour's intention was to make a ruling that the disqualification
had not been stayed. The position put simply is that if [div] 3.10.2 of the Magistrates Court
Act does not apply, section 218, which allows orders on appeal, does not apply. That
section specifically refers to the relevant part 3.10.2. If section 218 doesn't apply,
15
your Honour is simply not in a position and is not vested with power to make any order in
relation to the appeal or non-appeal.
61.
I do not disagree with most of counsel’s submissions, but it seems to me that he has
overlooked the logical consequence of those submissions.
62.
The relevant provisions of the Magistrates Court Act (at [49] above) use effectively
identical descriptions of the appeal being referred to:
(a)
s 208(1) identifies appeals “to which [div 3.10.2] applies”;
(b)
s 216 (in div 3.10.2) applies when a person “appeals under this division”;
(c)
s 218 (in div 3.10.2, giving power to make consequential orders) applies “on
an appeal to which this division applies”.
63.
There is no basis that I can see, and no basis suggested by counsel for the
respondent, for a finding that some of those provisions operate in relation to all
“appeals” (including ineffective attempts at appeals) under the division concerned, and
some of them only operate in relation to competent appeals.
64.
The conclusion I draw from the form of those provisions is, in summary, that:
(a)
an appeal under div 3.10.2 stays a sentence appealed against, and on
determining such an appeal, a court has power to make consequential orders;
and
(b)
if there is no effective (competent) appeal under div 3.10.2, then there is no
stay of any sentence, and (generally), no need to make any consequential
orders.
65.
Those conclusions would address Mr Bishop’s current position: if his “appeal” was not
effective to stay his licence disqualification, then he has been serving the
disqualification period since it took effect and is, therefore, within striking distance of
the Interlock program.
66.
On that basis, I do not see that addressing Mr Bishop’s situation requires me to make
any orders so as to raise questions about power. Having concluded that Mr Bishop has
not effectively appealed against his disqualification period, and that this is because an
appeal simply did not lie against the disqualification in the circumstances of this case, I
need do no more than to note that the disqualification period arising from proceedings
in the Magistrates Court has not been interrupted as a result of anything done by Mr
Bishop, and accordingly has been running since it took effect on 5 November 2014.
67.
It seems unlikely that any government agency that becomes aware of those
conclusions would seek to assert that Mr Bishop has not been serving his
disqualification in the period since he purported to lodge what I have held was an
incompetent appeal. If the law (specifically the Magistrates Court Act) does not require
or permit any action to be taken on the basis that Mr Bishop’s licence disqualification
period has been interrupted at any point, then no order should be needed to ensure
that the law is correctly applied in this case.
68.
I mention in passing, although it may not have any particular significance, that even
Mr Bishop’s apparently competent appeal against his other sentences seems not to
have been recognised by, for instance, Corrections (who have among other things
permitted him to perform his community service). In those circumstances, it would be
16
curious if the authorities now sought to rely on a presumed stay of the licence
disqualification that took effect under s 33 of the Road Transport (Alcohol and Drugs)
Act as a result of Mr Bishop’s conviction being recorded.
69.
As already noted, I am satisfied that Mr Bishop’s appeal in relation to the drink-driving
offence was in substance an appeal against the automatic statutory 5-year licence
disqualification and as such was not competent. However, it could be argued that,
especially in the case of an unrepresented litigant, it might have been appropriate to
give him the benefit (if any) of the fact that his notice of appeal identified his conviction
as part of the order appealed against, and find the appeal (to the extent that it was an
appeal against conviction) competent. Whether such a finding would be a benefit to the
appellant, at least in the current case, is not necessarily clear – the competent appeal
would presumably stay any sentence imposed on conviction, but its effect on an
automatic statutory disqualification (that is, whether s 216(1)(a), in staying “the
enforcement or execution of the ... conviction... that is the subject of the appeal”
operated to stay the automatic licence disqualification) was not a matter on which any
submissions were made before me, and I express no views on it.
Orders
70.
Accordingly:
(a)
I find that Mr Bishop’s purported appeal against the licence disqualification
period operative under s 33 of the Road Transport (Alcohol and Drugs) Act
was incompetent and of no effect; and
(b)
I dismiss Mr Bishop’s appeal against the convictions recorded and sentences
imposed by the Chief Magistrate in respect of the First Choice liquor offences.
I certify that the preceding seventy [70] numbered
paragraphs are a true copy of the Reasons for
Judgment of her Honour Justice Penfold.
Associate:
David Hoitink
Date:
23 December 2016
17