Ayres v Ford
[2016] ACTSC 204
•20 July 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Ayres v Ford |
Citation: | [2016] ACTSC 204 |
Hearing Date: | 20 July 2016 |
DecisionDate: | 20 July 2016 |
Before: | Murrell CJ |
Decision: | Appeal against sentence allowed. Sentenced to an 18-month good behaviour order and disqualified from driving for 12 months. See [32]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Punishment – sentencing – drug-driving – whether sentence manifestly excessive – appeal allowed |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 Crimes (Sentencing) Act 2005 (ACT) s 10 Road Transport (General) Act 1999 (ACT) s 61A |
Cases Cited: | Irving v Head [2016] ACTSC 37 |
Parties: | Stephen Ross Ayres (Applicant) Brett Jason Eric Ford (Respondent) |
Representation: | Counsel Mr P Edmonds (Applicant) Mr D Sahu Khan (Respondent) |
| Solicitors Paul Edmonds and Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 53 of 2015 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Boss Date of Decision: 3 June 2015 Case Title: R v Stephen Ross Ayres Court File Number: CC 9941 of 2014 |
MURRELL CJ:
For an offence of drug-driving, the Magistrates Court sentenced the appellant as a repeat offender to one month's imprisonment, suspended for two years upon the appellant accepting a good behaviour order with supervision conditions. The maximum available penalty was three months' imprisonment and/or a fine of 25 penalty units for a repeat offender, or 10 penalty units and no imprisonment for a first offender.
Section 4F of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Road Transport (Alcohol and Drugs) Act) defines “repeat offender” to include someone who has been convicted of an offence of a similar nature. In 1989 and 1992, the appellant was convicted of driving with a prescribed concentration of alcohol in his blood.
The Magistrate made no disqualification order, intending that the default disqualification period of five years that was applicable to repeat offenders would apply. The default disqualification period applicable to first offenders was three years.
The appellant appealed on the ground that the sentence was manifestly excessive, both in relation to the sentence of one month’s imprisonment and in relation to the disqualification period of five years.
He now concedes that an appeal against the disqualification period cannot be pursued because, at the relevant time, the legislation only allowed an appeal from "an order of the court" and, in this case, the Magistrate did not “order” the disqualification; her Honour merely allowed the default period by statutory operation. The law has since been changed. Now such an appeal is enabled by the combined effect of s 34(3) of the Road Transport (Alcohol and Drugs) Act, s 61A of the Road Transport (General) Act 1999 (ACT) and s 208(1)(g) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). However, the disqualification period may be revisited if the appellant succeeds on the other ground and the appellant is resentenced: Irving v Head [2016] ACTSC 37.
Facts
At 1.44 pm on 22 July 2014, police observed the appellant driving in excess of the speed limit. They followed his vehicle. The appellant turned right at an excessive speed and without employing a right-turn-signal. His vehicle crossed onto the wrong side of the street that it was entering. The vehicle then immediately turned left, swaying when it was over-corrected. The appellant drove over a gutter and into the front yard of his premises. There was one passenger in the vehicle.
The appellant produced an expired driver licence. He was subjected to a drug screening test, which was positive to methylamphetamine. When police spoke to him at the scene, the appellant was twitching and he was very pale. His eyes were watering and his speech was slow and slurred. He told police that he had driven home after getting food.
Information before the Magistrates Court
The appellant was 50 years old.
The appellant had a substantial criminal history, including offences relating to heroin and cannabis and driving offences in the 1990s. He did not offend from 1998 until 2006, when he committed an offence of negligent driving in New South Wales which was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW); in other words, without conviction. The next offence involved contravening a protection order in 2013. In February 2014, the appellant received an 18-month good behaviour order for that offence. That order was in place when the offence of drug-driving came before the Court; at the time of committing the offence of drug-driving the appellant was on conditional liberty.
In the years prior to the offence, the appellant experienced difficult domestic circumstances following a marital breakup in 2012. There were access problems in relation to at least one of three children.
The appellant's 18-year-old son suffered from epilepsy and anxiety and the appellant spent considerable time caring for him, as well as assisting to care for a grandchild.
The appellant last worked as a landscaper/gardener in the 1990s. His work terminated because of a back injury. In 2014, the appellant was assaulted. He received a head injury which left him with memory problems.
The Magistrate was informed that the appellant did not use methylamphetamine and was "at a loss as to why the methylamphetamine was in his system", although he accepted that it was. I find it very difficult to accept this statement and no doubt the Magistrate had the same reaction.
It was submitted that the appellant’s appearance on 22 July 2014 was due to his head injury. The Magistrate did not address that submission. I note that, in Court today, the appellant appeared to be extremely pale.
The Magistrate took into account the aggravating feature of the manner of driving. Her Honour referred to the appellant's guilty plea, criminal history and personal circumstances. Her Honour emphasised the importance of the sentencing purposes of specific and general deterrence and protection of the community, stating:
This legislation was put in place to ensure that people who had drugs in their system did not put other road users at risk and therefore a sentencing consideration is the protection of the community.
After convicting the appellant, her Honour went on to state:
The offence, in all the circumstances, is so serious that only a term of imprisonment is warranted. I, therefore, sentence you to one month imprisonment fully suspended upon you entering into a good behaviour order for a period of two years. That period of imprisonment is reduced by two weeks to take into account your plea of guilty. I make no order in relation to disqualification and, therefore, the default period applies.
Her Honour imposed a 12-month supervision condition on the good behaviour order.
Grounds of appeal
The appellant advanced three matters in support of his argument that the sentence of one month's imprisonment was manifestly excessive.
First, the appellant submitted that it was not open to the Magistrate to find, pursuant to s 10(2) of the Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act) that:
Having considered possible alternatives, that no other penalty is appropriate (other than imprisonment).
The appellant submitted that the Magistrate failed to consider appropriate alternatives such as a good behaviour order with a community service condition or a substantial fine. The Magistrate did not explain the reasoning behind her conclusion that the objective seriousness of the offence demanded a sentence of imprisonment.
Second, the appellant submitted that the suspension for two years added to the gravity of the sentence and that the period of one month’s imprisonment did not sit comfortably with a two-year suspension. In combination, this was a very heavy penalty.
Third, the appellant argued that, although the central purpose of any disqualification is community protection, any disqualification has the secondary effect of penalising the offender and, from the appellant’s perspective, a five-year disqualification was very significant additional penalty.
The issue is whether the sentence, taken as a whole, was "unreasonable or plainly unjust" or "outside the available sentencing range." It is trite to say that the issue is not whether this Court would have imposed a more lenient sentence, but whether the sentence was a plainly unjust or unreasonable exercise of the sentencing discretion.
In my view, the sentence that was imposed in this case was unreasonable.
I have no quarrel with the Magistrate's determination that the offence was a relatively serious one of its type. As her Honour found, poor driving aggravated the offence. However, while the appellant did drive very badly, there was no evidence he drove a long distance. No accident was involved.
However, the maximum penalty was three months' imprisonment and, compared to that maximum, the starting point for the sentence was very high, being half the maximum penalty. Second, the maximum penalty of three months was the penalty applicable to a repeat offender. While, technically, the appellant was a repeat offender, he barely qualified as such; the offences that made him a repeat offender occurred almost two decades prior to the subject offence. For a first offender, the maximum penalty was a fine. Third, the appellant subjective circumstances should have attracted some leniency. It was relevant that:
(a)he had attained 50 years of age;
(b)he had very little recent criminal history;
(c)he had gone through difficult matrimonial circumstances; and,
(d)he had suffered a head injury which may have impacted on his behaviour.
In my view the combined penalty of one month’s imprisonment suspended for two years and subject to supervision for one year and the five-year disqualification period was unreasonable.
I am comforted in this conclusion by a quick review of the statistics concerning the sentences imposed for such offences: 39% of offenders received fines; 52% received good behaviour orders and only 5% received fully suspended sentences. The fines are usually in the range of $300–$500 and the good behaviour orders are usually in the range of 12–18 months. Unfortunately, the statistics do not distinguish between first offenders and repeat offenders, but that may not matter very much in this case because the offences that made the offender a repeat offender had been committed so long ago.
The appeal is allowed.
Re-sentence
The appellant gave evidence that, after the conviction in mid-2015, there was a period of about 10 months during which he did not drive. He also gave evidence of continuing health problems himself and said that he continued to provide assistance to his children, one of whom suffers from epilepsy which is not properly controlled. The appellant continues to assist with a grandchild in whom the Care and Protection Services have an interest.
A medical report suggests that the appellant may well benefit from supervision in relation to drug use, although his ongoing drug issues do not appear to concern abuse of methylamphetamine.
The primary purpose of a disqualification period is protection of the public. In my view, this case does not require the imposition of a significant disqualification period. The disqualification period should take into account the fact that the appellant did not drive for some time after the offence.
A good behaviour order is appropriate. The appellant is not in a position to pay a fine and he would gain significant benefit from a period of supervision.
I set aside the penalty imposed by the Magistrate and in lieu:
(a)I make a good behaviour order requiring the appellant to sign an undertaking to comply with his good behaviour obligations for a period of 18 months;
(b)The good behaviour order is to include a probation condition that the appellant accept the supervision of Corrective Services for a period of nine months, after which Corrective Services may terminate the supervision if they consider termination to be appropriate. Alternatively, they may choose to continue the supervision for the whole period of the good behaviour order;
(c)The appellant is disqualified from driving from 20 July 2016 to 19 July 2017.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 5 August 2016 |