Bancroft v Carpenter
[2018] ACTSC 304
•7 November 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bancroft v Carpenter |
Citation: | [2018] ACTSC 304 |
Hearing Date: | 17 December 2015 |
DecisionDate: | 7 November 2018 |
Before: | Penfold J |
Decision: | 1. The appeal will be allowed to the extent necessary to set aside the orders made in respect of CC15/4432. 2. In respect of CC15/4432, no conviction will be recorded, but a good behaviour order for 12 months will be made, subject to core conditions only. 3. In respect of CC15/4065, the parties will be heard about whether any further orders are required to address the impact of the stay that was effected by the filing of this appeal. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against severity of sentence – absence of suspension period for drug-driving offence committed with drink-driving offence delayed offender’s access to interlock program – effect of drug-driving offence on interlock program access overlooked by Magistrate – appeal allowed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 17, 18 Magistrates Court Act 1930 (ACT) s 216 Road Transport (Driver Licensing) Regulation 2000 (ACT) reg 73T |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Beattie v Potts [2015] ACTSC 350; 305 FLR 198 Roncevic v Boxx [2015] ACTSC 53 |
Parties: | James Francis Bancroft (Appellant) Matthew James Carpenter (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Ms R Khazma (Respondent) |
| Solicitors Paul Edmonds Solicitor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 64 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 8 July 2015 Case Title: R v Bancroft Court File Numbers: CC15/4065; CC15/4432 |
Introduction
James Bancroft was sentenced in the Magistrates Court for two offences, being in colloquial terms drink-driving and drug-driving. He has appealed against his sentence.
Background
Circumstances of offences
Not long after 10pm on a Saturday night in March 2015, Mr Bancroft was driving a car in a residential street in Kaleen. The car mounted the gutter and went onto the nature strip, and a few metres further on collided with a car parked on the nature strip. Mr Bancroft’s car continued on and collided with an ACTEW light pole, which collapsed. Mr Bancroft’s car rotated 90 degrees and stopped, blocking the street.
Mr Bancroft sustained injuries to his face. His airbag had deployed, and police noticed it was covered in blood.
Mr Bancroft was taken to hospital, where a compulsory blood sample was taken. A blood alcohol reading of 0.195 was returned, and there was also evidence of cannabis in the sample, although no quantity or level was specified in the ACT Government Analytical Laboratory (ACTGAL) certificate. It seemed to be accepted by the parties that the absence of any quantitative information did not indicate that the quantity of cannabis detected was very low, but only the fact that for prescribed drugs (as distinct from alcohol), the level at which the drug was detected was irrelevant to making out the offence concerned and was therefore not reported by ACTGAL.
Mr Bancroft was interviewed by police several weeks later, on 8 April 2015. He said that on the afternoon and evening in question, he had consumed about a bottle and a half of wine and three full-strength beers. At the time of the accident, he had been driving from his home in Kaleen to a local service station to buy cigarettes. At the end of the police interview, he was served with an immediate suspension notice under s 61B of the Road Transport (General) Act 1999 (ACT), which suspended his driver licence for 90 days.
Further information about the circumstances of the accident emerged in the Alcohol Interlock Program Assessment report prepared on 15 June 2015. It seems that earlier in the evening, Mr Bancroft had been at a social gathering during which he was involved in unpleasant exchanges with another guest. His partner had driven the family home, but had admonished Mr Bancroft about how he had handled the incident. There was an argument, and Mr Bancroft, despite having recently given up smoking, decided to go and buy cigarettes.
Mr Bancroft’s blood alcohol reading took him into the level 4 category of the drink-driving offence. As a result of having been convicted of a low-range drink driving offence in New South Wales in 2001, he was to be sentenced for both driving charges as a repeat offender (s 4F of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act)). The NSW incident had also resulted in a reckless driving charge; Mr Bancroft had no other criminal history.
Personal circumstances
Aspects of Mr Bancroft’s personal circumstances were also of significance in the sentencing process. Mr Bancroft and his partner had two children, and at the time of the sentencing his partner was about to give birth to a third child. The older child, aged eight in 2015, suffered from an extremely rare kidney condition. She had had a kidney transplant and required regular blood testing; that monitoring required visits to Westmead Hospital every two months, and other medical appointments in Canberra on a regular and moderately frequent basis.
The Alcohol Interlock Program assessment before her Honour recorded:
(a)that Mr Bancroft was 31 years old, that he had tertiary qualifications and a history of professional employment;
(b)that there had been no problems in his childhood and that he had been in a stable relationship with the mother of his children for over 10 years;
(c)that he had suffered chronic pain after a snowboarding accident in 2010, and had also had other resulting health problems, including with the medication provided for depression due to the injury;
(d)that he had seen a psychologist for some time in 2009 after the death of a friend and problems in his own relationship; and
(e)that he did not generally use alcohol to excess, that he had used cannabis once every few months for most of the time since he was 18, and that his last use of cannabis had been a couple of weeks before the accident.
10. I note in passing, since it was not raised on appeal, that Mr Bancroft’s claim in the course of the interlock program assessment that he had last used cannabis some two weeks before his accident was not challenged before the Magistrate, and would have provided some basis for an assumption that the level of cannabis in his blood at the time of the accident was relatively low.
The sentence
11. The Magistrate convicted Mr Bancroft on both charges, and sentenced him as follows:
(a)For the drink-driving offence, to a fine of $1,000 and disqualification from driving for 18 months; her Honour noted that the disqualification period would be reduced by the three months licence suspension already served as a result of the issue, by police, of a suspension notice based on the results of the blood test. The disqualification period was considerably reduced from the default disqualification period of five years applying to Mr Bancroft’s offence, although not to the minimum disqualification period available to the court in respect of that offence.
(b)For the drug-driving offence, to a fine of $500 and a disqualification from driving for 12 months; this disqualification was also reduced from the applicable default disqualification period of five years, and for this offence was reduced to the minimum disqualification period available to the court in respect of the offence.
The appeal
12. By amended Notice of Appeal filed in court on the day of the hearing and not objected to by the respondent, Mr Bancroft appealed against “the severity of the ... sentences and the recording of a conviction for the [drug driving] offence”. The grounds of appeal were as follows:
(a)the Magistrate erred in not sentencing Mr Bancroft for charge CC 15/4432 on the basis that he did not have more than a minimal amount of the prescribed drug in his oral fluid;
(b)the Magistrate further erred in treating the fact that Mr Bancroft’s 8-year-old daughter had a terminal illness as circumstances disentitling Mr Bancroft to leniency for either offence and as increasing his moral culpability for the offences.
13. I note that the relevant drug-driving offence is having, within the relevant period, a prescribed drug in one’s “oral fluid or blood”. In this case the cannabis was detected in a blood test, and the summons to Mr Bancroft specified the presence of a prescribed drug in his blood. Most of the other documents relevant to this case also refer correctly to the drug having been detected in blood, but no point was or is taken about the appeal ground mistakenly referring to oral fluid rather than blood.
14. During the hearing of the appeal, a further error was asserted by counsel for Mr Bancroft, being that her Honour had overlooked the fact that the drug-driving offence had not been the subject of a suspension notice and that therefore the disqualification period provided for that offence, although described by her Honour as running concurrently with the longer disqualification period imposed for the drink-driving offence, would not in fact commence to run until some three months into the drink-driving disqualification period.
The real issue
15. The real complaint pursued in this appeal is that her Honour should have made a non-conviction order in respect of the drug-driving offence under s 17 of the Crimes (Sentencing) Act 2005 (ACT). The significance of such an order emerges from the argument put on behalf of Mr Bancroft at the appeal.
16. Under regulation 73T of the Road Transport (Driver Licensing) Regulation 2000 (ACT), a driver convicted of a Level 4 blood alcohol offence who is disqualified from holding or obtaining a driver licence may be issued with a probationary licence, under the alcohol interlock program (the interlock program) established by that regulation, if two conditions are satisfied, being:
(c)that the person has completed at least half of the disqualification period (reg 73T(2)(a)) (reg 73T(1)(b) defines the disqualification period as the period for which person is disqualified from holding or obtaining a driver licence); and
(d)that the person is not otherwise disqualified from holding or obtaining a driver licence (reg 73T(2)(b)).
17. Any such probationary licence “must be issued with an interlock condition imposed by the Road Transport Authority” (reg 73T(3)). A person whose licence is subject to an interlock condition is a “special driver” under s 4B of the Alcohol and Drugs Act, and accordingly must not drive a motor vehicle with any alcohol in his or her blood or breath (s 4C of the Alcohol and Drugs Act).
18. Under his 18-month disqualification period for the drink-driving offence, Mr Bancroft would have been able to obtain a probationary licence with an interlock condition after serving half of the disqualification period. However, the effect of the 12-month disqualification period for the drug-driving offence would have been to prevent Mr Bancroft obtaining a probationary licence until the whole of that 12-month disqualification period had been served, because until then Mr Bancroft’s application for a probationary licence would have fallen foul of reg 73T(2)(b).
19. Furthermore, under s 35(2) of the Alcohol and Drugs Act, the period of the licence disqualification imposed for the drink-driving offence was reduced by the 90-day suspension under the suspension notice mentioned at [5] above, but there was no licence suspension arising out of the drug-driving offence, and nor was there any scope to backdate the licence disqualification period imposed for that offence so that it ran concurrently with the suspension period (s 68 of the Road Transport (General) Act provides that a licence disqualification cannot be backdated to a time before the relevant conviction or finding of guilt).
20. That is, at the point when Mr Bancroft was sentenced, having effectively served three months of the drink-driving disqualification period, he had 15 months of that disqualification period, and 12 months of his drug-driving disqualification period, still to serve, and so he would not be eligible for the interlock program until 15 months into the total period of 18 months during which, as a result of the drink-driving offence, Mr Bancroft was not legally entitled to drive.
21. If Mr Bancroft had not been convicted on the drug-driving offence, however, he would have been eligible for the interlock program after serving half of his drink-driving disqualification period.
22. Counsel submitted to the effect that, if a non-conviction order had been made in respect of the drug-driving offence, then Mr Bancroft would have been eligible for the interlock program after completing nine months without driving (being his three-month suspension and the first six months of his reduced disqualification period), at which point he would have a further nine months disqualification to “serve” via the interlock program.
23. Mr Bancroft was, as it turned out, dealt with in the Magistrates Court exactly three months after the immediate suspension notice was served on him, and her Honour’s specification that the drug-driving disqualification should run concurrently with the drink-driving disqualification meant that the drug-driving disqualification began to run immediately, and would run concurrently with the drink-driving disqualification for its full 12 months, not being fully served until 15 months after Mr Bancroft began his 90-day licence suspension. Having recorded a conviction on the drug-driving offence, there was no scope for her Honour to mitigate the impact of the drug-driving disqualification on Mr Bancroft’s access to the interlock program.
24. In short, counsel’s submission was that if Mr Bancroft had not been convicted of the drug-driving offence, he would have been eligible for the interlock program nine months into his 18-month disqualification period, but that the 12-month disqualification resulting from the drug-driving conviction and beginning at the end of the drink-driving suspension period meant that he would not be eligible for the interlock program until 15 months into that 18-month period.
25. I accept counsel’s submissions about the operation of the law as far as they go, but I am not convinced that the numbers attached to the submission are entirely correct, for this reason. Section 35(2) of the Alcohol and Drugs Act is relevantly as follows:
(2) The period for which the person is disqualified under this part from holding or obtaining a driver licence (including any period of minimum disqualification under section 32 or section 33) is reduced by the period that—
(a) if the person is the holder of a driver licence—the person's driver licence was suspended under the Road Transport (General) Act 1999, section 61B; or
(b) ….
26. Specifically, the effect of the suspension is not to require or permit the backdating of the disqualification period but to reduce that period (including where the period is already the minimum disqualification period).
27. However, reg 73T(2)(a) (summarised at [16] above) refers to the period of disqualification, not to the total period (disqualification period and suspension period) during which it is unlawful for the person to drive. Thus, it is arguable in Mr Bancroft’s case:
(e)that the disqualification period for the purposes of reg 73T(2)(a) is not 18 months but has been reduced to 15 months;
(f)that half that reduced period is seven and a half months;
(g)that the seven and a half months only began to run at the end of the three-month suspension period; and
(h)therefore, that even in the absence of the drink-driving disqualification, Mr Bancroft would only be eligible for the interlock program after he has served a period of 10 and a half months (rather than nine months) during which it is not lawful for him to drive.
28. Even if my interpretation is correct, however, it remains the case that the recording of a conviction on the drug-driving offence (when no suspension notice was served in respect of that offence) has postponed by a number of months the point at which Mr Bancroft would be eligible for the interlock program.
29. I note at this point that Mr Bancroft served almost all of the first month of his disqualification period between the time he was sentenced and the time this appeal was lodged, thereby (under s 216 of the Magistrates Court Act 1930 (ACT)) staying the sentences pending the determination of this appeal.
The first appeal ground: presence of cannabis etc
30. This appeal ground was expressed as that the Magistrate had erred in not sentencing Mr Bancroft for the drug-driving offence on the basis that he did not have more than a minimal amount of cannabis in his oral fluid (or, more accurately, in his blood). However, this complaint seemed to be relied on in oral submissions as the starting point for a submission that her Honour’s failure to make a non-conviction order was itself an error.
Non-conviction orders - the legislation
31. Section 17 of the Crimes (Sentencing) Act is as follows:
17 Non-conviction orders—general
(1)This section applies if an offender is found guilty of an offence.
(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b) a good behaviour order under section 13.
Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a) the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
(5)If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.
Note 1 For notice of a good behaviour order under s (2) (b), see s 103. Note 2 For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J).
(6)Failure to comply with subsection (5) does not invalidate the non-conviction order.
(7) If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years.
(8)This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).
32. At the sentencing hearing, counsel for Mr Bancroft conceded that the level 4 drink-driving offence was too serious for a non-conviction order, but sought the making of such an order in relation to the drug-driving offence. That submission was made not explicitly by reference to the impact of a conviction on the opportunity to serve out the second half of the drink-driving disqualification on a probationary licence with an interlock condition, but by reference to the fact that there was no evidence before her Honour of the level of cannabis in Mr Bancroft’s system.
Consideration in the Magistrates Court
33. During the sentence hearing, the following exchange took place between counsel and the Magistrate:
MR EDMONDS: ... Your Honour, the submission, as I indicated at the outset, is that, again, the PCA offence is too serious, it is conceded, for your Honour to consider section 17, but in my respectful submission, your Honour does have a discretion under section 17 in relation to the drive with cannabis in his system, given, as your Honour is well aware, your Honour has no way of knowing what the level was.
Applying simple De Simoni principle and the principle that any aggravating factors would have to be proven beyond reasonable doubt, your Honour would sentence for that matter upon the basis that it was simply something more than a de minimis quantity; enough to be measured effectively. But your Honour could not infer, in my respectful submission, that there was any higher level than that.
HER HONOUR: I don't think the legislation requires that. In fact, there is a significant discussion even today in the paper about the whole basis behind this legislation. The default period is five years' disqualification for that offence.
MR EDMONDS: Yes.
HER HONOUR: And that's on the basis of a trace, without any measurable quantity. Indeed, I would be exercising my discretion by reducing it to 12 months.
34. The possibility of a s 17 order was raised again later in the hearing:
If your Honour then imposed the minimum disqualification for that matter, if your Honour is not minded to consider section 17, your Honour, that would certainly mean that for the period where the disqualification for that offence was concurrent, if your Honour made it concurrent with the disqualification for the drink drive, the defendant would not be eligible for an interlock licence during that period, but once he had completed the disqualification for the section 20 offence he would then become eligible for the mandatory interlock. I accept it's a difficult case, your Honour, but - - -
35. Counsel’s submission quoted at [33] above is the source of this appeal ground, initially framed as a complaint, in effect, about her Honour’s approach to the absence of evidence about the actual level of cannabis in Mr Bancroft’s blood.
Was there error?
Error relating to quantity of cannabis?
36. Counsel for Mr Bancroft submitted that it was clear that her Honour had rejected his submission about the significance of the amount of cannabis in Mr Bancroft’s blood (in summary, that he should have been sentenced on the basis that there was only a minimal amount of cannabis in his system), and had instead sentenced him on the basis that there was enough cannabis to affect his driving. Counsel did so in reliance on the following statement:
I don't think the legislation requires that. In fact, there is a significant discussion even today in the paper about the whole basis behind this legislation. The default period is five years' disqualification for that offence.
37. Her Honour’s statement is quoted in context at [29] above. I am satisfied that her Honour was not responding to the proposition that she could not sentence Mr Bancroft on the assumption that there was more than a detectable quantity of cannabis in his blood. Rather, in my view, she was noting, correctly, that the legislation did not require any particular quantity of the drug to be present, and that the offence was made out by the presence of any detectable quantity of a relevant drug (s 20 of the Alcohol and Drugs Act, and see Beattie v Potts [2015] ACTSC 350; 305 FLR 198 at [48]).
38. The absence of any specification of the quantity or level of cannabis detected simply deprived her Honour of one possible matter to be taken into account in assessing the seriousness of the offence (R v Fairbairn, Unreported, ACT Supreme Court, 27 February 2012), and there is no basis for finding that her Honour had misused the absence of specific information about the level of cannabis in Mr Bancroft’s blood by assuming that the level was enough to have affected his driving. It is clear from her Honour’s comments quoted at [33] above that she was well aware that there might have been only a trace of cannabis detected.
39. I am satisfied that her Honour did not sentence Mr Bancroft on the basis of any erroneous conclusion about the level of cannabis detected in his blood or its effect on his driving.
Misdirection about non-conviction order?
40. At the appeal hearing, counsel made further submissions in support of the more general proposition that her Honour had erroneously considered that a non-conviction order was not available for the drug-driving offence. In the absence of any explicit statement to that effect by the Magistrate, counsel referred to what he said were incorrect assumptions or conclusions that were implicit in her Honour’s comments and argued that, having inferred those incorrect assumptions or conclusions, I should in turn infer from them that her Honour had misdirected herself about the availability of a non-conviction order.
41. For instance, counsel submitted that her Honour had sentenced for both offences on the assumption that there was a significant risk of re-offending (relevant, presumably, to the sentencing purpose of community protection), and that this assumption was not available in relation to the drug-driving offence. However, he was not able to point to anything the Magistrate had said, either during the hearing or in her sentencing remarks, that indicated any such error. Nor was it clear to me why, if a risk of re-offending was relevant, such a risk of could not properly have been assumed in relation to the cannabis offence, especially having regard to the fact that (because there is no legal level of cannabis in one’s blood and because cannabis appears to remain in the body longer than alcohol does), a cannabis user could find it far harder to be sure that there is no cannabis at all in his or her system than to be sure that he or she is not “over the limit” for alcohol.
42. Counsel was able to point to her Honour’s reference to an unspecified offence (in the singular) being “towards the mid-range of objective seriousness”, which he submitted, possibly correctly, was intended to refer to both of the offences. Although that characterisation of the drug-driving offence would not have been obvious to me, I reject counsel’s further submission that such an approach was “not open to her Honour”.
43. Counsel also said that the application for a non-conviction order for the drug-driving offence was not unreasonable, that the circumstances affecting Mr Bancroft and his family were clearly exceptional in terms of his need for a driving licence (noting in particular that the rarity of his daughter’s condition probably meant that Mr Bancroft was the only man in Australia with an eight-year-old daughter suffering this condition), and that “because of the unique subjective circumstances in his case”, Mr Bancroft was not a suitable vehicle for general deterrence. These submissions seem to draw on legal concepts and principles that are more or less irrelevant in the current context, and while I have the utmost sympathy for Mr Bancroft’s daughter and for her family, I do not find the submissions convincing or even coherent.
44. When it became apparent that I was not inclined to infer, relying on a series of preliminary inferences, that her Honour had misdirected herself about the availability of a non-conviction order, counsel offered a further alternative submission, being that, a non-conviction order having been expressly sought, her Honour had failed to give adequate reasons for refusing to make such an order.
45. I can see nothing in her Honour’s discussion with counsel during the sentencing hearing, or in her sentencing remarks, that suggests that the Magistrate had misdirected herself about the availability of a non-conviction order. Section 17 of the Crimes (Sentencing) Act confers a discretion; it does not exclude the making of a non-conviction order in any particular circumstances, but equally it does not provide an entitlement to such an order in any particular circumstances. Nor can it be said that her Honour’s reasons for refusing to make such an order were inadequate. In context (in particular the context that sentencing took place in a “busy magistrate’s court” (Acuthan v Coates (1986) 6 NSWLR 472, Kirby P at 479, it was clear that her Honour regarded community protection as an important sentencing purpose, and saw deterrence as a useful way to further that purpose. At the same time, she was sympathetic to the problems facing Mr Bancroft and his family and, against the background of seeking to protect the broader community, sought to mitigate the sentences as far as possible. I cannot conclude that her Honour misdirected herself about whether a non-conviction order was available, that she fell into error simply by declining to make such an order, or that she erred by not providing enough of an explanation for declining to make one despite having heard extended submissions in favour of such an order.
46. This appeal ground, in any of its iterations, cannot be made out.
Significance of daughter’s illness
The appeal ground
47. The second appeal ground was that:
The learned Magistrate further erred in treating the fact that [Mr Bancroft’s] 8 year old daughter had a terminal illness as circumstances disentitling the defendant to leniency for either offence and as increasing his moral culpability for the offences.
48. In order to deal with the second appeal ground, it is necessary to refer in some detail to the sentencing hearing and her Honour’s remarks.
49. Almost as soon as counsel began his submissions, with a request for her Honour to impose a minimum disqualification period for the drink-driving offence, her Honour raised the matter of Mr Bancroft’s sick daughter, saying:
HER HONOUR: Is he a fit and proper person to drive? Because my concern is this is a man who has a very sick daughter and he knows what it is as a parent to go through the unthinkable for a parent.
MR EDMONDS: Yes, your Honour.
HER HONOUR: And yet gets in a car and puts himself in a position where he is going to put another parent in exactly that position if a child is killed or injured. So I don't know that while he is suffering his current circumstances he is a fit and proper person to be on the road at all.
50. Counsel then mentioned health problems that Mr Bancroft himself had recently suffered, and referred to it as:
further available evidence that has been put before the court of the extreme pressure and stress that he has been put under, which clearly, your Honour, is above and beyond the normal daily stresses that all of us experience.
51. The following exchange then took place:
HER HONOUR: But how can that excuse getting in a motor vehicle with this much alcohol on board and with a drug on board - - -
MR EDMONDS: Well, we're not asking for a section - - -
HER HONOUR: (indistinct) concern about the motor vehicle accident. My concern at the moment is if all of that - and I don't dispute that it is true, it's clearly supported by the information I've been provided. All of that being true, this person should not be on the road.
52. Shortly afterwards, her Honour said:
HER HONOUR: Well, I wouldn't have thought a man in his position would have been so foolish as to drive a motor vehicle, being a level 4 PCA, and with cannabis in his system.
MR EDMONDS: Yes, your Honour.
HER HONOUR: I mean I don't know what Mr Bancroft might do. That's one of my serious concerns, with a person under this much stress and being on the road.
53. Later on, counsel referred to Mr Bancroft’s remorse, and the following exchange took place:
... your Honour, is such that, again, without any exaggeration, as referred to in the interlock report, he has been having nightmares about the incident and about what may occur for his family when he is not - - -
HER HONOUR: I'd be more persuaded if he had nightmares about what could have happened to somebody else's family. You know, you're going through this yourself, and yet you put another family at risk of losing a child, losing a loved one. I see a lot of people who come before the court and are very sorry for themselves, and that worries me, because we're more concerned about attitudes toward other people and their concerns and understanding about what they could have put another family through.
54. In the course of her sentencing remarks, her Honour said:
You were involved in a single vehicle accident, and it seems there is some room to infer that had you been completely sober that accident may not have taken place, although there is little information, perhaps other than the general connection between impaired driving and motor vehicle accidents to form the basis of that inference.
What is of some considerable concern, and particularly to the community, is that there may have been another innocent person involved in that accident, and another family might now be in a situation where they have a child or another loved one in a very serious situation, if not deceased, as a result of this type of conduct, and that is why this is such an important issue for the protection of the community.
Consideration
55. It seems that her Honour became somewhat emotionally involved in the case, but in a slightly unusual and perhaps confused way. Her reasoning process appeared to be as follows:
(a)Mr Bancroft had a child with a life-threatening illness;
(b)this should have made him exceptionally conscious of the terrible and tragic things that can happen to people and of the impact of such things on people’s families;
(c)this in turn should have made him exceptionally conscious of the need to avoid any kind of risky driving, and in particular drink-driving or drug-driving;
(d)therefore, the fact that his own family’s tragedy did not seem to have influenced his behaviour in a socially desirable way on the night in question is an aggravating factor.
56. I note also that apart from the chain of reasoning outlined at [55] above, her Honour at one point seemed to be suggesting that the stress resulting from his daughter’s illness in fact rendered Mr Bancroft too dangerous to be allowed to drive for the foreseeable future: this appears to be the implication of the following comments, quoted in context respectively at [49], [51] and [52] above:
So I don't know that while he is suffering his current circumstances he is a fit and proper person to be on the road at all.
…
this person should not be on the road.
…
I mean I don't know what Mr Bancroft might do. That's one of my serious concerns, with a person under this much stress and being on the road.
57. Curiously, though, her Honour did not actually deal with Mr Bancroft’s licence disqualification as if she thought either his drink-driving or his drug-driving was an aggravated example of the offence concerned, or indeed as if she considered that he should not be allowed to drive in the foreseeable future; instead, and presumably in recognition of the problems his licence disqualification would cause for his family, she reduced his disqualification period for drink-driving significantly from the default period of five years to a total period of 18 months, three months of which had already been served under the suspension notice served by police.
58. In relation to the drug-driving offence, her Honour, in reducing the default five-year disqualification period to the minimum (12 months) and providing for it to run concurrently with the drink-driving disqualification, clearly intended that the drug-driving offence would not have any immediate consequences for Mr Bancroft (as distinct from any longer-term consequences of having a drug-driving conviction on his criminal history).
59. Accordingly, although her Honour’s comments might have suggested that she saw Mr Bancroft as disentitled to leniency and as being more than ordinarily culpable for the offences, or that she saw him as too dangerous to be on the road at all, the sentences she imposed do not seem to have reflected any such view.
Conclusion
60. I cannot conclude that her Honour fell into the error identified in the second appeal ground.
The third error
Nature of error
61. This error was identified as a failure to realise that the drug-driving disqualification, not having a related suspension notice, would not start to run until three months into the 18-month period during which Mr Bancroft was prevented from driving (the non-driving period), and therefore would not finish until 15 months into that period.
62. This error did not seem to matter in so far as it simply shifted the period of concurrent disqualifications into the middle of the 18-month non-driving period rather than locating it in the first 12 months of that period. Its significance resulted from its impact on Mr Bancroft’s ability to access the interlock program after he had served the first half of his drink-driving disqualification, as explained at [15] to [28] above.
63. The possibility that Mr Bancroft could access the interlock program was mentioned by counsel for Mr Bancroft during the sentencing hearing and the Magistrate, referring to the drug-driving offence, said “That’s not going to be covered by the interlock”. She did not, however, advert to the fact that while the drug-driving disqualification was running the interlock program would not be available in respect of the drink-driving disqualification, and more significantly she did not advert to the fact that the drug-driving disqualification would not start running until after the 90-day suspension period for the drink-driving offence.
64. Counsel’s submission was that the interlock program would be available in respect of the drink-driving offence after Mr Bancroft had served half the relevant disqualification period, but like her Honour he did not advert to the impact of the 90-day licence suspension on that period, or to the impact of the absence of a licence suspension in respect of the drug-driving offence. The transcript of the Magistrates Court proceedings makes it clear that her Honour had the interlock program in mind when she reduced Mr Bancroft’s drink-driving disqualification to 18 months, but it is not clear that she was conscious of the full impact of the minimum drug-driving disqualification on the availability of the interlock program.
65. When this matter was raised during the appeal hearing, counsel for the respondent submitted that I should accept that her Honour was aware of the full effect of the12-month drug-driving disqualification, because of her Honour’s comments when imposing sentence, as follows:
… in relation to driving with a prescribed drug, I convict you of that offence. I fine you $500. In light of your personal circumstances, there are sufficient and appropriate reasons for me to reduce the default period of disqualification of five years. I therefore disqualify you from holding or obtaining a driver’s licence for a period of 12 months.
In relation to driving as a repeat offender, level 4, I convict you of that offence. I fine you $1000. You are to pay $75 court costs, $50 criminal injuries compensation, $30 victim service levy. In light of your family commitments and your employment situation, there are sufficient and appropriate reasons for me to reduce the default period of five years’ disqualification. You will therefore be disqualified from holding or obtaining a driver’s licence for a period of 18 months. That period of disqualification will be concurrent with the period of disqualification that I have just imposed and is reduced by the period your licence has been suspended.
66. Counsel is correct in saying that her Honour was aware that Mr Bancroft had not been subject to any suspension in respect of the drug-driving offence. However, I am not persuaded by counsel’s further submission that her Honour must therefore also have been aware that, despite ordering the 12- and 18-month disqualification periods to run concurrently, the 12-month disqualification would not have any concurrency with the suspension part of that 18-month period. During the sentence hearing there was discussion about the availability of the interlock program, and about whether it would be appropriate for Mr Bancroft to have access to the interlock program after six months (if only the minimum disqualification period of 12 months were imposed for the drink-driving). In that context, it seems likely that her Honour had concluded that it was more appropriate to delay access to the interlock program until Mr Bancroft had been off the road for nine months (being half the 18-month period) or, possibly, for the full 12 months of the drug-driving suspension.
67. I am satisfied that her Honour intended the drug-driving disqualification period to run concurrently with the non-driving period for the drink-driving offence, and in the absence of any express deferral of the drug-driving disqualification to a point later than the start of the non-driving period, I consider it should be assumed that the concurrency was intended to start at the beginning of that non-driving period. That assumption is consistent with the form in which the disqualification orders were entered in the Registry: the drink-driving order refers to disqualification for 18 months, “which is reduced by” the suspension period, and the drug-driving order refers to a one-year disqualification “to be served concurrently with the disqualification ordered by the court” on the drink-driving offence. However, the “disqualification ordered by the court” is clearly a reference to the 18-month disqualification actually ordered, not to the reduced period of disqualification resulting from the operation of the legislation by reference to the suspension order.
68. I am not persuaded, however, that the Magistrate realised that she was deferring Mr Bancroft’s access to the interlock program until he had been off the road for 15 months. If her Honour did realise that impact, it would have been appropriate for her to point it out, since it seems clear from the Magistrates Court transcript that Mr Bancroft’s counsel did not understand it.
69. I am accordingly satisfied that her Honour fell into error in dealing with the drug-driving offence, in that she imposed a sentence that was intended to allow Mr Bancroft access to the interlock program after no more than 12 months in which he was precluded from driving, but that did not in fact operate that way.
70. Her Honour might even have expected Mr Bancroft to have access to the interlock program after nine months (if she had overlooked the fact that the drug-driving disqualification would bar him from the interlock program for the full period of that disqualification), but I am satisfied that she did not expect him to be barred from to the interlock program for more than 12 months after he had been excluded from driving.
71. Depending on the nature of her Honour’s oversight, her error might be characterised, by reference to House v The King (1936) 55 CLR 499 at 505, as:
(e)either an error of fact or law, being the failure to recognise that in this particular case (error of fact) or under the applicable law (error of law), the drug-driving disqualification period did not include an initial licence suspension and therefore could not run concurrently with the non-driving period for the drink-driving offence from the beginning of that period; or
(f)if Her Honour was aware of these matters of fact or law – as a failure to take account of a relevant consideration, being the fact that the drug-driving disqualification period, despite being expressed to run concurrently with the drink-driving disqualification period, had significantly different consequences in two important respects, namely:
(i)the dates between which it would run; and
(ii)the fact that, as well as not itself providing access to the interlock program, it barred that access to a person whose drink-driving sentence would have allowed such access.
Result of finding error
72. That finding of error would permit the re-opening of the sentencing discretion, and in my view this is a case in which a different sentence, being the making of a non-conviction order in respect of the drug-driving offence, is warranted (see Roncevic v Boxx [2015] ACTSC 53 at [19] – [23]).
Availability of non-conviction order
73. In determining that a non-conviction order would be appropriate in respect of the drug-driving offence, I have taken account of Mr Bancroft’s character, antecedents, age, health and mental condition as described at [8] and [9] above, as well as his family circumstances as already mentioned.
74. I have also accepted counsel’s submission that it would be inappropriate to make any assumption adverse to Mr Bancroft about how much cannabis was detected in Mr Bancroft’s blood (while equally making no favourable assumption about that matter). I further consider that judicial notice may be taken of the fact (which appeared also to be accepted by the Magistrate) that cannabis may be present at some level in a user’s system for rather longer after it has been used than alcohol or many other drugs, and long after it has ceased to have any effect on the user’s driving capacity. In those circumstances, it would in my view also be inappropriate to make the assumption that Mr Bancroft must, at the point when he decided to drive to get cigarettes, have been aware of the likelihood of cannabis being present in his system or of the possibility that it would affect his capacity to drive (in contrast to the legitimate assumption that Mr Bancroft must have been aware of the presence of alcohol and the likely effect on his driving). This can be seen as rendering the drug-driving offence a relatively less serious example of the relevant offence. Whether the exclusion of any finding that Mr Bancroft should have been aware of the presence of cannabis in his system, or that the cannabis detected was affecting his driving, amounts to an extenuating circumstance is not something I need to decide in this case.
Orders
75. I shall accordingly:
(g)allow the appeal to the extent that it relates to the sentence imposed for the drug-driving offence;
(h)set aside Mr Bancroft’s conviction on the drug-driving offence, the fine of $500, and the licence disqualification order made in relation to that offence; and
(i)instead, as permitted by s 17(2)(b) of the Crimes (Sentencing) Act, make a 12‑month good behaviour order under s 13 of that Act.
76. I note that, under s 18 of the Crimes (Sentencing) Act, I could also make a licence disqualification order in respect of the drug-driving offence despite not recording a conviction, but I see no utility in ordering a disqualification that, in the circumstances, would appropriately be specified to expire at or before the point in the drink-driving disqualification period at which Mr Bancroft would be able to access the interlock program.
77. Since the appeal was expressed to be against both sentences imposed in the Magistrates Court, they have presumably both been stayed by s 216 of the Magistrates Court Act 1930 (ACT), and I shall hear the parties about whether it is necessary to update the orders made in respect of the drink-driving offence.
| I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 7 November 2018 |
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