R v Wilson[2016] QCA 301

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  I agree with Morrison JA that this application for leave to appeal against sentence should be granted and the appeal allowed to the extent of setting aside the order disqualifying the applicant, Melissa Wilson, from holding or obtaining a driver licence for four years.
2. Mrs Wilson pleaded guilty to three counts of supplying methylamphetamine and was sentenced to three years imprisonment on each count, to be served concurrently with each other and with a sentence of three years and four months imprisonment she was then serving for trafficking in methylamphetamine.  As a result, the total period of imprisonment she was to serve was more than three years so that, under s 160C Penalties and Sentences Act 1992 (Qld), the judge was required to set a parole eligibility date rather than a parole release date.  His Honour set parole eligibility on 10 January 2017 and disqualified her from holding or obtaining a driver licence for four years.
3. I agree with Morrison JA’s analysis of the circumstances of the offending and of the issues arising in this appeal.^[1]
4. The purposes of the Penalties and Sentences Act include “providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration”.^[2]  The Penalties and Sentences Act, Part 11, “General”, s 187(1)(a), relevantly provides that if “an offender is convicted of an offence in connection with...the operation…of a motor vehicle by the offender...the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified...for such period as is ordered by the court, from holding or obtaining a Queensland driver licence”.  In context, “operation” connotes not merely use of the vehicle but the state of it working mechanically, that is, being driven.  The term “in connection with” should be construed broadly to allow judges to exercise the s 187 discretion in appropriate cases so as to meet the interests of justice in the unique circumstances of each matter.  For example, occasionally judges have disqualified offenders from holding or obtaining a driver licence for a period when sentencing for break and enter convictions where the offender has repeatedly used a vehicle to transport stolen property.
5. In committing count 1, Ms Wilson drove to a pre-arranged meeting place and supplied methylamphetamine in exchange for $1,600, the transaction occurring inside her parked vehicle.  In respect of count 2, she supplied the drug in exchange for $1,650 inside the car of an undercover police officer, inferentially after driving her car with the drug to the pre-arranged meeting place.  In respect of count 3, Ms Wilson was sitting in her parked car when she supplied the drug in return for $400 cash, again, inferentially after driving to the pre-arranged meeting place with the drug.  I consider that Ms Wilson’s driving to pre-arranged meeting places with the methylamphetamine which she then supplied was, on each occasion, sufficient in terms of s 187(1)(a) to make each offence one “in connection with” the operation of a motor vehicle by her.  In my view, the primary judge had the power under s 187(1)(a) to make the impugned order.
6. In exercising that discretion his Honour made two errors in the House v The King^[3] sense.  First, his Honour was wrong to state that “each of the offences were [sic] committed by [Ms Wilson] when [she was] driving a BMW motor vehicle.”  Whilst all offences were committed by Ms Wilson in connection with her driving, none were committed when she was driving.  She committed count 1 and count 3 whilst seated in her parked vehicle and count 2 whilst seated in a vehicle belonging to someone else.  Second, his Honour erred in failing to invite submissions from defence counsel as to whether he should exercise the discretion under s 187(1) to disqualify Ms Wilson from obtaining or holding a driver licence.^[4]  These errors require this Court to exercise the discretion afresh to determine whether leave should be granted and the appeal allowed.
7. The terms of s 187(1)(b) require, but are not limited to, a consideration of the nature of the offence or the circumstances in which it was committed in determining whether the disqualification of the offender is in the interests of justice.  The discretion is broad and includes the need for protection of the public from those who create danger on the road; the impact of the disqualification on the offender’s future employment prospects; the risk that the disqualification period may create a disincentive to rehabilitation on release from custody; and the extent to which the disqualification period would operate as an additional penalty to other penalties imposed.^[5]  In the present case, it is also relevant to consider whether the disqualification would assist in protecting the public from Ms Wilson’s commercial drug dealing.
8. Nothing before the primary judge or this Court suggests that Ms Wilson was a danger on the road such that there was a need to protect the public from her manner of driving.^[6]  As his Honour did not directly raise a possibility of disqualification with Ms Wilson’s counsel, there was no material before the court as to the impact of it on her future employment or rehabilitation prospects.  Counsel did, however, inform the court of her past employment history in the decorating industry; that she holds a Certificate II in Hospitality and a Certificate III in Fashion Design; that she was a talented seamstress; and that she hoped to find employment in this field when released from custody.^[7]  I would infer from this that disqualifying her from holding or obtaining a driver licence could affect her future employment prospects; possibly create a disincentive to her rehabilitation on release from custody; and operate as an additional penalty to her prison sentence.  There was no reason to conclude that disqualifying her from driving would protect the public from her unlawful drug dealing.  If she does not rehabilitate and persists in anti-social drug-dealing on her release from custody, she is likely to re-offend, irrespective of any disqualification, either without driving or by driving without a licence.  On balance, I am unpersuaded that the interests of justice require she be disqualified from holding or obtaining a driver licence as part of her sentence.
9. It follows that leave to appeal should be given and the appeal allowed.  I agree with the orders proposed by Morrison JA.
10. MORRISON JA:  Ms Wilson pleaded guilty to three counts of supplying a dangerous drug, namely methylamphetamine.
11. On 11 January 2016 she was sentenced to three years’ imprisonment on each count, to be served concurrently.  A parole eligibility date of 10 January 2017 was set.  A serious drug certificate was issued.  She was also disqualified from holding or obtaining a driver’s licence for a period of four years.
12. Ms Wilson seeks leave to appeal against her sentence, but only in so far as it concerns the disqualification of her driver’s licence for four years, which is contended to be manifestly excessive.

Circumstances of the offending

13. An agreed schedule of facts was tendered.  It set out the basic facts of the offending:

Count 1 – 7 February 2014

14. Police targeted the supply of drugs in a particular area of the Gold Coast, using Law Enforcement Participants, including one called Bishop:

1. Bishop made an arrangement with a person called Thomson to buy drugs;
2. Thomson told the Bishop that “Mel” (Ms Wilson) would supply the drugs, and the quality of the drug would dictate the price he would have to pay;
3. that night, directed by Thomson, Bishop parked his car on a particular road; Thomson was in Bishop’s car; just before Thomson got out of the car, Bishop gave her $1,600 in cash;
4. a minute later a silver BMW driven by Ms Wilson pulled up behind Bishop’s car; Thomson got into the BMW, had a brief conversation with Ms Wilson, then got out of the car and walked towards Bishop; Ms Wilson drove off;
5. Thomson and Bishop drove a short distance before Thomson gave a clip seal bag of methylamphetamine to Bishop; Bishop dropped Thomson off at another address; and
6. the BMW was registered to Ms Wilson.

Count 2 – 1 March 2014

15. On 1 March 2014 Bishop arranged with Thomson to buy drugs:

1. he met Thomson at a 7-Eleven service station, and they drove to an Office Works building;
2. Bishop observed Ms Wilson sitting in her BMW in the Office Works car park; Bishop parked a short distance away;
3. Ms Wilson got into the rear passenger seat of Bishop’s car, behind Thomson; Bishop handed her $1,650 in cash; Thomson produced a clear plastic container which contained methylamphetamine;
4. a minute later Ms Wilson got out of Bishop’s car, and walked away; Thomson handed the plastic container to Bishop; and
5. then Thomson got out of Bishop’s car, and got into Ms Wilson’s car.

Count 3 – 20 March 2014

16. On 20 March 2014 Bishop made arrangements to buy drugs from Gill, an associate of Thomson:

1. he met Gill at his unit, then left there to go to the Grand Hotel;
2. while at the hotel Gill spoke to Ms Wilson, then told Bishop that Ms Wilson said a quarter of an ounce of amphetamine would cost $2,800 to $2,900;
3. they returned to the unit; Ms Wilson arrived there; Bishop handed her $2,795 in cash;
4. about 14 minutes later they left the unit; Ms Wilson got into the driver’s seat of a white utility and drove off, with Gill and Bishop following;
5. about an hour and 20 minutes later Bishop and Gill (in Bishop’s car) and Ms Wilson (in her BMW) parked in the car park of an hotel; Gill got out and approached Ms Wilson’s car; Ms Wilson handed Gill a clear clip seal bag containing methylamphetamine, and $400 in cash; Ms Wilson then drove away; and
6. Gill gave the bag and cash to Bishop.

17. At the time of the offences Ms Wilson was on parole in relation to a conviction for trafficking in dangerous drugs, under which she received a sentence of three years and four months, imposed on 21 August 2012.

Ms Wilson’s criminal history

18. Ms Wilson’s criminal history reveals an appalling record of offending, particularly drug related offending, commencing when she was 23.  It includes:

1. possession of dangerous drugs: 1994, 1995, 2000, 2001, 2002 (two charges), 2004, 2006 (four charges), 2007 (four charges), 2008, 2009 (two charges), 2010 (two charges), 2011;
2. trafficking in dangerous drugs: 2012;
3. possession of drug related utensils such as pipes, in 1994, 2000, 2002, 2004, 2006 (two charges), 2007, 2008, 2010 (two charges), 2012;
4. possessing tainted property: 2006, 2007, 2010;
5. possession of property suspected of having been used in a drug offence: 2006;
6. possession of property for use in a crime: 2004, 2010, 2012;
7. fraud (dishonestly obtaining property from another): 2002 (58 charges);
8. entering or in premises with intent to commit an indictable offence: 2002,
9. escape from lawful custody: 2002;
10. breach of bail: 2002, 2004 (two charges), 2005 (four charges);
11. stealing: 2005 (two charges), 2006, 2009, 2010 (two charges), 2012, 2014 (two charges);
12. failure to appear: 2006 (two charges);
13. breach of probation: 2008;
14. dangerous operation of a vehicle: 2009, 2010;
15. attempted unlawful use of a motor vehicle: 2010;
16. failure to comply with a requirement to stop a vehicle: 2009;
17. failure to stop a vehicle: 2009;
18. serious assault or assault on a police officer: 2009, 2010 (two charges);
19. possession of a knife in a public place: 2010; and
20. receiving or possessing property obtained from trafficking: 2012.

19. She had been sentenced to periods of imprisonment on at least 13 occasions in the decade from 2002, including: (i) June 2002, 18 months suspended, on the fraud and possession charges; (ii) December 2002, three months on fraud charges, and the balance of the suspended sentence activated; (iii) October 2004, seven days on possession of drugs charges; (iv) October 2004, 14 days for breach of bail; (v) April 2005, 15 days for breach of bail; (vi) November 2005, three months suspended, on stealing charges; (vii) December 2006, three months on drug possession charges; (viii)  November 2007, four months on drug possession charges; (ix) May 2008, six months on a resentencing for the 2007 charges as a result of breach of probation; (x) February 2009, six months on the dangerous operation of a vehicle charge, and eight months on drug possession charges; (xi) February 2010, 12 months on drug possession, stealing, serious assault and attempted unlawful use of a motor vehicle charges; and on a reopening of the previous dangerous operation charge, 14 months; and (xii) August 2010, nine months on possession of utensils charges.
20. The sentence imposed for the trafficking offence in 2012 was imprisonment for three years and four months, with parole eligibility set at 21 December 2012.
21. In the 2012 sentencing remarks, Byrne SJA described Ms Wilson as having been a methylamphetamine addict since about 2012, and that her addiction led her to continue offending notwithstanding being imprisoned on five occasions.^[8]  Her dealing in drugs was then confined to methylamphetamine, to support her habit.^[9]

How the licence issue was dealt with

22. During the sentencing hearing Ms Wilson’s antecedents were examined.  She was 42 at the time of offending, and 44 at sentence.  The agreed schedule of facts was tendered, as was the 2012 sentencing remarks of Byrne SJA.
23. In the course of the prosecutor’s submissions this exchange occurred:^[10]

“Your Honour, supplying methylamphetamine, a schedule 1 drug, carries a maximum penalty of 20 years’ imprisonment. Strong personal and general deterrence is called for. It is open to your Honour to impose a cumulative sentence pursuant to section 156 of the Penalties and Sentences Act. Your Honour - - -

HIS HONOUR: Now, because a vehicle was involved, can I make an order in relation to her driver’s licence? The vehicle was involved in each offence.

MS DARWEN: Yes, your Honour. She drove offence – to the location. In honesty, I hadn’t turned my mind to that part of the offence as such. It’s a matter for your Honour.

HIS HONOUR: Yes.”

24. Nothing further was said on the topic.  It was not raised with Ms Wilson’s counsel, who made submissions that the head sentence should be moderated to take into account the total time spent in custody, specifically because of the requirement to serve out the remainder of the 2012 sentence as a result of the breach of parole.  Counsel then made this submission on sentence:^[11]

“My ultimate submission is this: that your Honour would impose a head sentence somewhere in the order of two to two and a-half years, taking into account the continuous custody and the moderation of that head sentence, and would set an eligibility date at approximately six months’ time.”

25. That submission was for a sentence that did not include disqualification of the licence, but the absence of an express reference to the issue means it is hard to tell whether that was because defence counsel was addressing the issue by leaving it out, or simply failed to address it.

Approach of the learned sentencing judge

26. The sentencing remarks reveal that the learned sentencing judge took into account the following matters:^[12]

1. she had only dealt in methylamphetamine to support her own habit;
2. she was a mature recidivist with a lengthy and concerning criminal history;
3. the nature of the offending as revealed in the schedule of facts;
4. the aggravating circumstance that they were committed while on parole; the cancellation of parole was for reasons unconnected with the present offences;
5. the timely plea of guilty, reflecting remorse and cooperation with the administration of justice;
6. the serious nature of the offending and the maximum penalty of 20 years’ imprisonment; and
7. the need for personal and general deterrence.

27. The sentence imposed (on each offence) was imprisonment for three years, to be served concurrently.  It was also to be served concurrently with the existing sentence, which at that time had about seven and a-half weeks left to run.  Having pronounced that the learned sentencing judge said:^[13]

“Each of the offences were committed by you when you were driving a BMW motor vehicle. The motor vehicle was used by you to facilitate the commission of the offences and to aid you in committing them. In those circumstances, I consider it appropriate that you be disqualified from holding or obtaining a driver’s licence for a certain period, in order to minimise the likelihood of further offending involving a motor vehicle.

For each offence, you will be disqualified from holding or obtaining a driver licence for four years from today.”

28. Parole eligibility was set at 10 January 2017.  Counsel for Ms Wilson was then asked if that covered everything, and she said it did.  Counsel did not seek to be heard on the issue of the driver’s licence.

Discussion

29. The simple contention on appeal was that the period of disqualification of the driver’s licence was too long, and that made the sentence manifestly excessive.  It was contended that no disqualification should have been imposed.
30. The power exercised by the learned sentencing judge was that under s 187 of the Penalties and Sentences Act 1992 (Qld), which provides:

“(1)If -

1. an offender is convicted of an offence in connection with or arising out of the operation, or the interference in any way with the operation, of a motor vehicle by the offender; and

2. the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a Queensland driver licence;

the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a Queensland driver licence.”^[14]

31. Counsel for Ms Wilson conceded that the discretion under s 187 was enlivened, but contended that it should not have been exercised in favour of imposing any period of disqualification.
32. For the reasons which follow in paragraphs [33] to [40] below, I am unconvinced that the concession was warranted.
33. The requirement of s 187 of the Penalties and Sentences Act is that the offence be “in connection with or arising out of the operation … of a motor vehicle”.  The phrase “in connection with” does not denote a causal link between the subject and object, but is of wide import and, subject to the context in which it is used, is capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote.^[15]
34. Whether there is a connection between the operation of the vehicle and the offence is a question of fact and degree.^[16]  It has been said to involve consideration of the degree to which the connection is direct or immediate or remote or tenuous.^[17]  The court in Chalmers postulated, in the context of a statute dealing with the use of property in connection with the commission of a crime, two ends of the spectrum; one where the use of the property was “instrumental” in the commission of the offence, and the other where the property was merely “the passive location at which the offence is committed”.^[18]  Chalmers then said:^[19]

“[91]There will, of course, be cases along this spectrum where the question whether the requisite connection exists (between the use of the property and the commission of the offence) will be a matter of difficulty. Those cases will require a close examination of the nature of the property, its precise use, the nature of the offence that was committed and the manner, if any, in which the property was used in connection with the commission of the offence. The more passive the use of the property and the more incidental its role, the less likely it is that the requisite connection will be found to exist.”

35. In Hart the following was said by P Lyons J:^[20]

“[897]As Riley CJ noted in Dickfoss, McLure P in White CA had observed that the expression “in connection with” was “of wide import”, and capable of describing “a spectrum of relationships ranging from direct and immediate to tenuous or remote”. In both cases, it was nevertheless accepted that the expression should not be taken at its widest sense. In my respectful opinion, McClure P has identified good reason for taking this approach, and, like Doyle CJ in George, has attempted to provide useful guidance for the application of the test.”

36. Though the authorities referred to above dealt with statutory provisions for the recovery of proceeds of crime, the provision referred to property “used in, or in connection with, the commission of the offence”.  The similarity with s 187 is obvious, and suggests that the authorities are of assistance here.
37. The phrase “arising out of” connotes a causal link between the subject and object.^[21]  In other words there must be a causal link between the offence and the operation of the motor vehicle.  That is easy to see where the offence is caused directly by the operation of a vehicle.^[22]  It is less easy to see where the use of the vehicle is incidental to the offence.
38. Where the vehicle is simply a means of personal conveyance, during the course of which the driver commits an offence not related to the operation of the vehicle, I consider that there is reason to think that the requisite relationship or causal link for s 187 is absent.  The use of the vehicle is passive or incidental to the way the offence is committed.
39. That such a connection is inadequate can be seen by examining a couple of examples.  If a person used their vehicle to get home after buying dangerous drugs, and then was found in possession of them at the home, could it really be said that the possession offence arose out of or in connection with the operation of the vehicle?  What if a person drives to a place nearby where it is intended to supply drugs to others, but then walks away from the vehicle and engages in the acts of supplying dangerous drugs while away from the vehicle? The latter example could easily apply where a drug supplier drives into town, intending to supply drugs while at a nightclub.  Could it rationally be said that the acts of supply arose out of or in connection with the operation of the vehicle?
40. One can see an argument that there is the requisite connection where the operation of the vehicle is more directly linked to the offence, for example where a vehicle is used to transport quantities of drugs, or the precursors, as part of a trafficking business.  But that is not this case.
41. Be that as it may, the concession was made and the application was conducted in this Court on that basis.  It is therefore unnecessary to decide the scope of s 187 and what sort of connection will suffice.
42. The disqualification was part of the overall sentence imposed for the offences of which Ms Wilson was convicted.  Review of that part of the sentence must take place in light of the conduct that led to the conviction and the sentence otherwise imposed.^[23]
43. The three offences were supplies of methylamphetamine at street level.  As to that:

1. the arrangements to buy were made by the buyer (Bishop) with Thomson or Gill, who liaised with Ms Wilson;
2. Thomson or Gill was the person who dealt with Bishop; Ms Wilson only dealt with him on counts 2 and 3, and then only to the extent that the cash was handed to her by Bishop; on count 2 it was in Bishop’s car, and on count 3 it was in a unit;
3. in each case the location of the delivery of the drugs was a public car park or street;
4. there was no evidence that Ms Wilson stipulated the location of the delivery;
5. in each case Thomson or Gill was the person who took actual delivery of the drugs from Ms Wilson before handing them to Bishop; and
6. Ms Wilson used her car to travel to the place where the drugs were handed over.

44. It is evident that the learned sentencing judge was not referred to the authorities that are applicable when s 187 is engaged.  They were recently reviewed by this Court in R v Stevenson.^[24]
45. In Osborne the issue was raised in a case concerning the dangerous operation of a motor vehicle, where a truck struck several cyclists, killing one and seriously injuring others.  The driver pleaded guilty to dangerous operation of a vehicle causing death and grievous bodily harm.  He was sentenced to three and a-half years’ imprisonment, suspended after 14 months for an operational period of four years.  He was also disqualified from holding or obtaining a licence for five years.
46. This Court referred to the sentence of imprisonment as a “significant head sentence” in so far as it provided for suspension after 14 months.  That was reduced to nine months.^[25]
47. Stevenson adopted the following passage in Osborne, as to the issue of the disqualification:^[26]

“The authorities do not support and nor did the parties suggest the existence of a reliable discernible pattern to the duration of disqualification periods imposed in cases like the present. Doubtless that is because of the variability of relevant considerations which can apply to this particular exercise of sentencing power.”

48. Osborne identified the considerations which are relevant to the discretion to disqualify a driver, exercised under s 187 of the Penalties and Sentences Act:^[27]

“However, the discretion arising under s 187(1) as to the period of disqualification is broad and not expressed as being confined solely to “the nature of the offence, or to the circumstances in which it was committed.” Other considerations which have been regarded as relevant to that discretion include:

-the need for protection of the public from persons who create danger on the road, particularly those with a pattern of doing so;

-the consequences of the disqualification upon the offender’s future employment prospects;

-the risk that the disqualification period may create a disincentive to rehabilitation on release from custody;

-the extent to which the disqualification period will operate as an additional penalty to other penalties imposed.”

49. As to the last factor, Osborne referred to observations of Macrossan CJ in R v Nhu Ly,^[28] that such a disqualification “is not meant to be simply a gratuitous addition to other available punishments” and that there “should be an apparent purpose in disqualification as such, rather than would, say, be served by a heavier fine or a longer prison term”.^[29]  Osborne went on to say:^[30]

“Section 9(1)(a) of the Penalties and Sentences Act 1992 (Qld) provides in summary that the purposes of sentencing are punishment, rehabilitation, deterrence, denunciation and community protection. It follows that the observations of Macrossan CJ ought not be read as indicating that an order disqualifying an offender from holding or obtaining a driver’s licence may not serve the legitimate purpose of punishing the offender. However where the duration of a disqualification order exceeds what is necessary for the other purposes of sentencing, care must be taken to ensure its duration does not give rise to a punishment which is unjust overall.”

50. Because the learned sentencing judge was not referred to the authorities establishing the applicable principles, and because his Honour said nothing about them, it is difficult to resist the conclusion that the disqualification imposed was not based on a consideration of those principles.  That said, before this Court it was not submitted that the discretion under s 187 was not available at sentencing.  Rather, it was said that it miscarried because of the failure to consider the matters in Osborne.
51. It was also contended that the learned sentencing judge did not raise the question of the intended disqualification with defence counsel, thus denying the opportunity to be heard on it.  In that respect reliance was placed on R v Cunningham.^[31]  I do not accept that contention.  In Cunningham there was no indication at all that the sentencing judge intended to impose a disqualification.  Here the intention was foreshadowed with the prosecutor, and defence counsel did not address it, for whatever reason.  There was no denial of an opportunity to address the issue.
52. In so far as the learned sentencing judge assigned a reason for imposing the disqualification, it was that a motor vehicle had been used to facilitate and aid the offences, and the disqualification “for a certain period” was to “minimise the likelihood of further offending involving a motor vehicle”.
53. Several things may be said about that approach.
54. First, the present case is unlike Osborne and Stevenson, both of which concerned offences directly arising out of the use of a motor vehicle.  Here the offence was supply of dangerous drugs, and it happened to be the fact that Ms Wilson used a motor vehicle to get to or from the place where the supply was made.  In my view, the mere fact that a car is used that way cannot be a justification for disqualifying the offender’s licence.
55. Secondly, no reasoning is apparent as to why the particular period of four years was imposed.
56. Thirdly, there is no apparent consideration of whether the period selected exceeded what was necessary for the other purposes of sentencing, or whether the selected duration gave rise to a punishment which was unjust overall.  In this respect it may be noted that if parole was granted in January 2017, the disqualification would extend three years beyond Ms Wilson’s release.  If parole was refused it would extend a year beyond the final release date, and thus a year beyond the total period of actual imprisonment.
57. Fourthly, it is, with respect, difficult to see the rationale behind the conclusion that disqualification would “minimise the likelihood of further offending involving a motor vehicle”.  Given the fact that the intermediary in the drug deals was Thomson and she was a friend of Ms Wilson, if future offending of a similar type was to occur it is just as likely that Ms Wilson would, if necessary, get someone else to drive her, or Thomson (or someone in a like position) would drive the buyer to wherever Ms Wilson was.  Further, Ms Wilson’s criminal history does not suggest that she is constrained by regard to the law, so the possibility of her driving whilst unlicensed is obvious.  Indeed that occurred in August 2009 when, at a time when Ms Wilson’s licence had already been disqualified,^[32] she was convicted of dangerous operation of a vehicle and attempted operation of a vehicle.^[33]
58. As a result the learned sentencing judge erred in the sentencing process.  It therefore falls to this Court to exercise the sentencing discretion afresh.

The head sentence

59. Given the lack of any challenge to the head sentence of three years, and the date set for parole eligibility, there is no need to examine them in detail.  It suffices to say that those aspects of the sentence are amply justified when one has regard to the circumstances of the offending, the fact that it occurred while on parole, Ms Wilson’s history, her plea of guilty, and the range of sentences indicated by the comparable cases relied on at sentencing.^[34]

The disqualification

60. As to the period of disqualification, the factors in Osborne that are potentially relevant here are: the consequences of the disqualification upon Ms Wilson’s future employment prospects; the risk that the disqualification period may create a disincentive to rehabilitation on release from custody; and the extent to which the disqualification period will operate as an additional penalty to other penalties imposed, or as it was put in Nhu Ly, a gratuitous addition to other available punishments.

Future employment prospects

61. As to this factor as there is no evidence as to likely employment.  However, during the hearing the learned sentencing judge was told about Ms Wilson’s history, without objection:^[35]

1. she was educated until the completion of year 10 at a high school;
2. she had been self-employed since 1996 in the decorating industry;
3. she holds a Certificate II in Hospitality, completed in 2012;
4. she has completed a Certificate III in Fashion Design, completed whilst in custody in 2015; and
5. she is “quite a talented seamstress, and that’s what she wishes to do when she’s released from custody”.

62. Therefore, if the past can be a guide to the future, there was evidence that Ms Wilson had been self-employed in the decorating industry since 1996, and had completed certificates in Hospitality and Fashion Design.  Further, the time in custody had revealed Ms Wilson’s talent as a seamstress, which was a career she wished to follow when released.
63. In my view, allowing for the fact that the expressions were as to the future, the prospect of future employment could not be dismissed.
64. In my view, it is not difficult to infer that a self-employed person, especially one in hospitality or garment manufacture, might need the flexibility that a driver’s licence affords.  Some weight should be given to this aspect.

Prospects of rehabilitation

65. In addition to the matters set forth in paragraph [61] above, the learned sentencing judge was also told something of the circumstances in which the offences came to be committed.^[36]  Ms Wilson struggled with a significant addiction to amphetamines.  As part of her parole she was required to live with her mother, which she did successfully, and she was “doing reasonably well”.  Her mother died in January 2014.  Ms Wilson did not cope well with that event, and went back to a partner who was a drug user, and “slipped into old ways”.
66. About the time of the offences she was required by her parole conditions to live in a rehabilitation centre.  One of the inmates died and Ms Wilson was quite distressed as a result.  She went to a boyfriend’s house and returned 15 minutes late to the rehabilitation centre.  That triggered the breach of the parole.
67. There was no evidence at the sentencing hearing as to whether any drug tests had been administered while Ms Wilson was in custody, and if so, whether she had returned any positive results on such tests.
68. In my view, it cannot be said that this is a case where there are no prospects of rehabilitation.  The learned sentencing judge set parole eligibility at one third of the sentence.  Whilst that responds to the plea of guilty, remorse and cooperation with the administration of justice, it also recognises that there are prospects of rehabilitation.  Those prospects should not be diminished by an unwarranted disincentive being imposed.  In my view a period of licence disqualification could do just that.  If Ms Wilson’s rehabilitation depended in any way upon the flexibility that a car presents, it is not in the interests of the community as a whole to have that rehabilitation impeded.

Additional or gratuitous penalty

69. The comparable cases to which the learned sentencing judge was referred supported the imposition of three years’ imprisonment as an appropriate penalty for the offending.  In so far as the sentencing process called for public denunciation, and personal and general deterrence, that is achieved here by the imposition of a custodial sentence of appropriate length.  Whilst it was open to impose a period of licence disqualification, it is difficult to see why that would act as anything apart from an additional or gratuitous penalty.  That is even stronger if the period is well beyond when Ms Wilson might be released on parole.
70. Counsel for the respondent contended that the period of disqualification was warranted by one factor, that the use of a motor vehicle was integral to the way the present offences were committed.  It was said the offending was “grounded in the act of driving”.^[37]
71. I do not consider that contention ought to be accepted.  It is true that Ms Wilson drove to and from the location where the supply took place, but that was no more than incidental to the offence.  The location could well have been specified by Thomson or Gill, thus necessitating that Ms Wilson get there somehow.  On count 2 the exchange of drugs and cash took place in Bishop’s vehicle, not that of Ms Wilson.  In count 3 the cash was paid in Gill’s unit, and Ms Wilson’s vehicle was not even there.
72. In reality the vehicle was simply being used as a means of personal conveyance, and the offences were not related to the operation of the vehicle.  In my view, where that is the case the discretion should not be exercised to disqualify the offender’s licence as that runs the serious risk of amounting to a gratuitous addition to other available punishment.  In so far as the offences called for denunciation and deterrence (both personal and general) that was achieved by the custodial sentence.
73. Further, imposition of a disqualification in such circumstances as apply here seems to lack an apparent purpose in terms of sentencing.  It is noteworthy that the efforts of counsel had failed to reveal any case where a disqualification had been imposed in a case such as this is.
74. Counsel for the respondent drew attention to the fact that Ms Wilson had been disqualified before.  That is true but in each case the offence was the dangerous operation of a vehicle, not an offence such is under consideration here.
75. In my view no period of disqualification should be imposed.

Conclusion

76. For the reasons expressed above, I would grant the application for leave to appeal, allow the appeal, and set aside the order imposing a disqualification of the applicant’s driver’s licence for the period of four years imposed on 11 January 2016.
77. I propose the following orders:
    1. The application for leave to appeal is granted.
    2. The appeal is allowed.
    3. Set aside the sentence imposed on 11 January 2016 in so far as it disqualified the applicant from holding or obtaining a driver’s licence for four years from 11 January 2016.
    4. The orders made on 11 January 2016 are otherwise affirmed.
78. ATKINSON J:  I agree with the orders proposed by Morrison JA and with the reasons of McMurdo P.  I wish to add some brief observations.
79. When a sentencing judge proposes to impose a punishment which has never before been imposed on any other person for a like offence, it is the duty of the judge to give the parties an opportunity to make submissions on the matter before the imposition of any such punishment.  In this case, the prosecution had not sought the extra punishment imposed by the judge of disqualifying the applicant from holding or obtaining a driver licence for a period of four years.  It was clear from the prosecutor’s submissions that she was, unsurprisingly, taken unawares when the judge posed the question of whether he could impose the extra punishment.  The prosecution did not have the opportunity to make informed submissions on the question.  The judge did not seek or hear any submissions on the question of whether the extra punishment could or should be imposed from defence counsel who was also, no doubt, taken by surprise by the judge’s question to the prosecutor concerning the extra punishment.
80. It is the very nature of the adversarial system of justice, which is the hallmark of criminal justice in this jurisdiction, to seek and hear informed submissions on the law and the facts from the prosecution and the defence.  To approach the problem in any other way is to risk the arbitrary exercise of power by a judge not fully informed of the legal principles on which the judge should act.
81. In these circumstances it is perhaps not surprising that the sentencing judge made the errors that he made and failed to act in accordance with legal principle.