Amanda Thies v Joanne Paulin

[2012] ACTSC 192

AMANDA THIES v JOANNE PAULIN
[2012] ACTSC 192 (11 December 2012)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 72 of 2012

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               11 December 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCA 72 of 2012
AUSTRALIAN CAPITAL TERRITORY    )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:AMANDA THIES

Appellant

AND:JOANNE PAULIN

Respondent

ORDER

Judge:  Higgins CJ
Date:  11 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed to the extent of deleting the suspended sentence.

1. The six month’s licence suspension is backdated to 19 April 2012.

1. I will not recite the facts in detail.  The facts are noted in the statement of facts which was before her Honour, the sentencing magistrate.  There was a plea of guilty that was noted and is common ground in this appeal.  Her Honour also noted that it was timely and accompanied by efforts which were indicative of remorse and a desire to meet the underlying problem which had led to the appellant becoming, if not to put too fine a point on it, an alcoholic.  The appellant seems to have acknowledged that and she has taken steps to address that issue which is, if I may say so, responsible and appropriate.

1. The circumstances of the offending behaviour were certainly not in the least level of seriousness, even for a matter of this kind.  The blood alcohol level was quite high.  I appreciate it was a Level 4, but at 0.185 it was high even for that level.  Clearly the offending behaviour was accompanied by a course of driving that was dangerous.  It certainly led to the vehicle being engaged with a tree, no doubt suffering considerable damage.  It is very likely to have been written off.  As has been remarked, that imposes on the appellant the penalty that any policy of insurance that was relevant, or might otherwise have been relevant, is voided.  This is a matter that a court can take into account in determining what the overall penalty should be upon the offender.

1. In this case she had been driving for 14 years without prior conviction and had no convictions of any kind.  There were reasons which were expressed in the evidence and I will not recite them, for her depression and it led, unfortunately for her, to turning to alcohol which led to the behaviour in question.  She was aware that she was under the influence, and was aware that she should not be driving, which again is, on one hand, an aggravating factor, but it also underlines that she was being candid with the court and was, indeed, expressing genuine remorse for that which had happened.

1. The learned magistrate, as I read her reasoning, seems to have accepted that the appellant was in need of, and should be encouraged, in terms of rehabilitation.  However, that does not imply that there ought to be an escalation of the penalty immediately to imprisonment.  I appreciate that it has, no doubt, and was intended to have, a deterrent effect but one must keep suspended sentences for cases which really call for them.  Generally speaking, if a person is convicted for the first time in their life of anything, even if the offending is in a relatively serious category, one would need very good reason to escalate straight away to imprisonment when other penalties are available.  Indeed, it is noted in the legislation that imprisonment is a penalty of last resort, and last resort had not been reached with Ms Thies.

1. Obviously she does need to have supervision to ensure that her underlying problems are addressed.  There does need to be a response which indicates condemnation of the kind of behaviour that led to the offending behaviour.  However, it does seem to me, in all the circumstances, that to have escalated immediately to imprisonment was, on the face of it, something which at least required explanation, and there is none.

1. Looking at it from my perspective, having decided that there is, therefore, an error in the lack of explanation, lack of reasons for imposing imprisonment as opposed to any other penalty, it does seem to me that in the circumstances, particularly those that have since been revealed, it would be appropriate to proceed as the learned magistrate did, save for the imposition of the suspended sentence.  There is no appeal against the disqualification.  It is six months which seems quite appropriate. In the circumstances, it is appropriate to date the disqualification from 19 April 2012, the date of the first imposition of the suspension.  The good behaviour order itself seems quite appropriate. 

1. I would therefore uphold the appeal to the extent of deleting the penalty of a suspended sentence.  I note that the appropriate authorities should be informed of this outcome.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:     4 January 2013

Counsel for the Appellant:  Mr J Lawton
Solicitor for the Appellant:  Rachel Bird & Co
Counsel for the Respondent:  Mr K Lee
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  11 December 2012
Date of judgment:  11 December 2012