Bialecki v Rollings
[2020] ACTSC 344
•23 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Bialecki v Rollings | ||||||||||
| Citation: | [2020] ACTSC 344 | ||||||||||
| Hearing Dates: | 23 November 2020 and 11 December 2020 | ||||||||||
| Decision Date: | 16 December 2020 | ||||||||||
| Before: | McWilliam AsJ | ||||||||||
| Decision: | See [68] | ||||||||||
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from Magistrates Court against conviction and sentence – whether Magistrates Court erred in the assessment of objective seriousness – whether aggravating circumstance proved beyond reasonable doubt – whether error in finding of no extenuating circumstances – whether appropriate for appellate court to re-sentence – whether | ||||||||||
| non-conviction order should be made | |||||||||||
| Legislation Cited: | Crimes Act 1900 (ACT) s 49A Crimes (Sentencing) Act 2005 (ACT) ss 17, 33 Magistrates Court Act 1930 (ACT) pt 3.10 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4B, 4C, 4E, 19, 26 | ||||||||||
| Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Hambrook v Duke [2014] ACTSC 203 House v The King (1936) 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Leljak v Fitzroy [2015] ACTSC 247 | ||||||||||
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang | |||||||||||
| (1996) 185 CLR 259 Mulato v R [2006] NSWCCA 282 Olds v Daire (1981) 29 SASR 133 Proud v Sladic [2014] ACTCA 26 Vickers v R [2020] NSWCCA 297 | |||||||||||
| Parties: | Kazik Bialecki (Appellant) Tracy Rollings (Respondent) | ||||||||||
| Representation: | Counsel | ||||||||||
| B Morrisroe (Appellant) M Howe (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Sharman Robertson (Appellant) | |||||||||||
| ACT Director of Public Prosecutions (Respondent) | |||||||||||
| File Number: | SCA 44 of 2020 | ||||||||||
| Decision under appeal: |
| ||||||||||
| McWilliam AsJ: | |||||||||||
| Introduction |
1. On Friday 24 April 2020, the appellant was involved in a single motor vehicle accident on Tralee Street in Hume. He subsequently returned a breath alcohol reading of 0.068 grams of alcohol per 210 litres of exhaled breath. Under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the RT Act), and with specific reference to the circumstances of this case, an offence is committed if a person has been the driver of a motor vehicle on a road and has the prescribed concentration of alcohol (PCA) in the
person’s blood or breath. For the appellant, the PCA was 0.05 grams or more of alcohol
in 210 litres of breath (see s 4C of the RT Act).
2. A summons was issued on 3 June 2020 (CC2020/5348), charging the appellant with an offence against s 19(1) of the RT Act. The appellant pleaded guilty in the court below and on 13 August 2020, was convicted, fined $400, and disqualified from driving for a period of two months.
3. The appellant appeals from the sentence, including the conviction, pursuant to pt. 3.10 of the Magistrates Court Act 1930 (ACT). In summary, the four grounds that were pressed on appeal were as follows:
(a) The court below erred in its assessment of the offence as being in the mid to upper end of objective seriousness (Issue 1). (b) The court below erred in its assessment of the motor vehicle accident as relatively serious (Issue 2). (c) The court below erred in its determination that the appellant’s decision to drink alcohol caused, or at least significantly contributed to, the accident (Issue 3).
(d) The court below erred in its assessment that there were no extenuating circumstances (Issue 4). 4. In relation to each Issue, the appellant submitted that there was specific error in the exercise of the sentencing discretion. Once specific error is found, it becomes the duty of the appellate court to re-sentence, unless in its exercise of the discretion the Court determines that no different sentence should be passed: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35]. If any of the Issues are determined in the
appellant’s favour, the appellant has tendered further evidence by consent, seeking to
persuade the Court that a different sentence should be passed, and in particular that a non-conviction order should be made, pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the CS Act).
Issue 1: Did the court below err in its assessment of the offence?
5. The court below assessed the objective seriousness of the offence as being “towards
the upper end of objective seriousness, or at least mid to upper range of objective
seriousness for this type of offence.” In reaching this conclusion, the court below
acknowledged that “the [PCA] reading was relatively low”, however it was also noted that the appellant’s conduct caused a motor vehicle accident, which was an aggravating
feature. The court below referred to the fact that there was damage to the front of the
motor vehicle, debris over the road and damage to some wooden bollards.6. The appellant argued on appeal that a finding of objective seriousness was not in the mid to upper range for drink driving offences under s 19 of the RT Act. As s 19 of the RT Act covers all drink driving offences, an offence where the PCA reading was 0.068 would fall within the low range of objective seriousness.
7. The appellant submitted that the only aggravating feature of the offence was the fact of a single motor vehicle crash at an indeterminate speed, but even then, the traffic was light, no one was injured, there was no evidence of damage to anything other than the
vehicle and the police formed the view that the appellant was only “slightly affected” by
alcohol.
8. If the magistrate was referring only to offences that were classified as Level 2 (under s 4E of the RT Act), being an alcohol concentration range of between 0.05 grams and 0.08 grams per 210 litres of breath, the appellant argued that should have been made clear in the reasons for sentence as the offence itself was a contravention of s 19 of the RT Act. It is only the penalty provision under s 26 of the RT Act that delineates the levels and increasing penalty.
9. Further, if that was the magistrate’s intention, then the magistrate should have classified
the PCA reading as in the middle of the Level 2 range. A reference to the reading as
being “relatively low” would only be correct if the magistrate was considering the offence
against all drink driving offences under s 19.
10. The respondent argued that, in coming to the finding that the offence was in the mid to upper range of objective seriousness, the court below considered a number of factors. These may be paraphrased as including the following:
(a) The fact that although the PCA reading was relatively low, the appellant’s conduct caused a motor vehicle accident, which is a serious consequence.
(b) The motor vehicle was damaged due to the accident and there was also damage to bollards. (c) There was debris over the road. (d) The police observation that the appellant was visibly affected by alcohol, whether slightly or otherwise. (e) The very mischief that the RT Act was introduced to address – namely the risk of a motor vehicle accident when people who are affected by alcohol get behind
the wheel of a car – eventuated.
11. Attention was drawn to the particulars of the charge, set out in the Information and Summons dated 3 June 2020, which expressly referred to the breath alcohol reading as Level 2. Given that the appellant was arraigned on the specific offence of Level 2 drink driving, it is unlikely that the court below would have then assessed the objective seriousness of the offence by reference to the broader offence of drink driving.
12. The respondent relied upon the accepted principles regarding challenges to the assessment of objective seriousness on appeal. The assessment of objective seriousness is quintessentially a matter for the sentencing judge. A court on appeal will be slow to substitute its own view for that of the first instance judge: Mulato v R [2006] NSWCCA 282 at [46]-[48]; Vickers v R [2020] NSWCCA 297 at [66].
13. The respondent contended that as this was a discretionary consideration, what was required was an error of the kind identified in House v The King (1936) 55 CLR 499 at 505. The court below did not make its assessment of the objective seriousness on the basis of an incorrect principle, mistaken facts or through irrelevant considerations; nor was the finding so unreasonable or plainly unjust as to infer that there had been a failure to properly exercise the discretion.
As part of that contention, the respondent stressed that the magistrate’s reasons must
be taken in context and particular passages of the transcript were raised during the hearing, discussed further at [17]-[18] below. The respondent also submitted that the
context included the fact that the appellant’s solicitor in the court below had referred to the offence as a “low range offence”. The inference the Court should draw was that the magistrate simply echoed that description, when using the words “relatively low reading”.
15. Given the circumstances of this particular offence, including the PCA reading and the motor vehicle accident, it was well within the discretion of the court below to find that the offence was of the mid to upper range of objective seriousness for this type of offence, being a Level 2 drink driving offence.
Consideration
16. The reasons of the court below were given ex tempore and without the benefit, indeed
the luxury, of time to finesse the clarity of language. I accept the appellant’s submission
that a finding that the conduct was in the mid to upper range of objective seriousness for all offences under s 19 of the RT Act was not open. However, when regard is had to the context of the hearing and the reasons that followed, it is apparent that the magistrate was not referring to the entire scope of offences that might be committed under s 19 of the RT Act. Rather, the finding of objective seriousness was made in the context of the offences falling within a Level 2 classification.
17. There are two passages from the transcript which provide that context. Both are found
as part of the magistrate’s consideration of the question of whether to make an order
pursuant to s 17 of the CS Act. The first extract is as follows:
The real issue here is the seriousness of the offence. Although the reading was relatively low,
his conduct did cause a very – a relatively serious motor vehicle accident. …
The second extract followed an exchange where the appellant’s legal representative
clarified that following the accident the car rolled down the street, in the sense that it continued moving down the middle of the street, and then conceded there was significant
damage to the appellant’s motor vehicle. The magistrate then said:
Right. And certainly there was debris over the road and damage to the bollards. That places this offence at a level in its context, as a serious example of this type of offending. That is, the fact that the risk which this legislation addresses came to pass; that is, the risk of being involved in a motor vehicle accident eventuated is an aggravating feature and places this towards the upper end of objective seriousness, or at least mid to upper range of objective seriousness for this type of offence.
(Emphasis added)
19. The use of the emphasised words is sufficient to enable this Court on appeal to
understand the magistrate’s reasoning. It is apparent that what the magistrate was
intending to convey was a starting point that this was a Level 2 offence. In the scheme of the RT Act, such a classification does refer to a low range PCA reading. The use of
the word “relatively” takes account of the fact that there is a Level 1 classification for a
PCA reading of up to 0.05 grams of alcohol per 210 litres of exhaled breath. However, a Level 1 classification is not relevant to drivers who are not defined as a special driver (see s 4B of the RT Act, which includes, for example, people with a learner or provisional licence, who are not permitted to have any alcohol reading at all).
The magistrate’s reasoning then discloses that, having regard to the offence being of a
Level 2 classification, there was some further context, which was that the appellant had a motor vehicle accident, where he collided with bollards, which resulted in damage to
the car. It was the fact of the motor vehicle accident that, in the magistrate’s view,
elevated the conduct to a level of objective seriousness that meant an order pursuant to
s 17 of the CS Act was not appropriate.21. I am not persuaded that there was any error of law for the magistrate to say that the
reading was “relatively low” in the context of all drink driving offences, and then to go into
more detail in assessing the objective seriousness of the offence with specific regard to
the Level 2 category.22. Statements abound in the authorities about the beneficial construction to be given to ex
tempore reasons in the Magistrates Court – a busy sentencing court of summary
jurisdiction. In Acuthan v Coates (1986) 6 NSWLR 472 at 479, Kirby P cautioned against
falling:... into the error of examining this unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
23. Examples of similar observations in this jurisdiction are to be found in Proud v Sladic [2014] ACTCA 26 (Proud) at [30]-[31] and Leljak v Fitzroy [2015] ACTSC 247 at [8], by reference to the oft-cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291.
On a fair reading of the magistrate’s reasoning, what is really being challenged is an
infelicity of language. The discretionary finding as to the objective seriousness of the offence was open to the magistrate in the court below. Accordingly, Ground 1 is not made out.
Issue 2: Did the court below err in its assessment of the seriousness of the motor vehicle accident?
25. The relevant finding of the court below is as follows:
Weighing in the balance all of the facts and matters, I am of the view that on this occasion it is not appropriate for me to exercise my discretion, although the reading was relatively low and had the defendant been detected through a random check rather than the manner of his driving, my approach would almost certainly have been different.
Given that the risk did eventuate and there was a motor vehicle accident of a relatively serious nature, in my view this places the offence beyond one which I am prepared to exercise my discretion, when weighing in the balance all of the factors that I have just indicated.
26. The appellant submitted that the court below erred in finding that the motor vehicle accident was serious. Through his counsel, he argued:
(a) There was no evidence of the nature of the accident other than the fact that there was damage to the front of the appellant’s motor vehicle and the airbags
had been deployed.
(b) No one was injured. (c) There was no evidence as to how the accident occurred or the manner in which the appellant was driving prior to the accident. (d) There was no evidence as to what speed the appellant was driving at or what the speed limit in the area was. (e) There was no evidence as to whether there were other persons in the vicinity of the accident, although it could be inferred that there were not as no eyewitnesses to the event were identified by police. 27. The appellant cited Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou) at [64] for the proposition that a sentencing judge may not take facts into account in a way that is adverse to the interests of the offender unless they have been established beyond reasonable doubt. The appellant argued that the court below had taken into account the nature of the accident as a factor that was adverse to the appellant, without evidence to support such a finding beyond reasonable doubt.
28. The appellant accepted that the evidence in the court below included the following:
(a) There was damage to bollards, although the extent was unquantified. (b) The airbags of the motor vehicle deployed. (c) There was debris on the road. (d) The damage was described as “significant” to the front of the motor vehicle. (e) Bangs were heard by people who contacted police. 29. However, he argued that those circumstances, combined with the absence of any evidence as to the speed of the crash, did not amount to evidence beyond reasonable doubt that this was a serious motor vehicle accident.
The appellant argued that it was the court’s categorisation of the seriousness of the
accident that caused the magistrate to exercise her discretion in the manner in which
she did, so that the factual finding was productive of material error.31. The respondent referred the Court to places in the transcript where the magistrate’s assessment of the motor vehicle accident was recorded as being “serious”, “fairly significant”, and “of a relatively serious nature”. It was submitted that the magistrate’s
assessment of the collision was based upon uncontroversial facts.
32. The appellant admitted colliding with wooden bollards, with sufficient force to cause both airbags to be deployed, and for multiple bangs to be heard by those who subsequently contacted the police to report the incident. The Statement of Facts was agreed, where it
was stated that the car had “extensive damage to the front body of the vehicle” and that
there was debris over the road.
33. The respondent accepted that any aggravating feature needed to be proved beyond reasonable doubt, but submitted that in light of these unchallenged facts that were in evidence in the court below, it was clearly open to the magistrate to find that the accident was relatively serious.
Consideration
The respondent’s submissions must be accepted. The lack of evidence about the speed
a car was travelling when an accident occurred does not determine whether a factual finding that the accident that did occur was serious was open on the criminal standard of proof. A car could be travelling at a very low speed and yet still cause an accident with very serious consequences.
35. There was no evidence as to precisely how the accident occurred or at what speed the appellant was driving. However, the unchallenged evidence has been set out above. This was not an accident such as a low speed reversal into a car in a car park or a car rolling forward in a garage. This was an accident on a public road where the car undoubtedly hit something (bollards) and where the front of the car received significant
damage. The words “relatively serious” or other iterations used by the magistrate are
not a term of art or a legal classification. They were simply the description given by the
magistrate in an attempt to capture the agreed facts.36. In any event, when considering whether to exercise the discretion to make an order under s 17 of the CS Act, the magistrate was not drawing a distinction between a minor accident and a relatively serious one. Rather, the magistrate was comparing a hypothetical circumstance, where the offence was detected through a random check, with the manner
of the appellant’s driving, which resulted in a motor vehicle accident. From what the
magistrate said (see [25] above), the former scenario may have made it appropriate for
the discretion under s 17 of the CS Act to be exercised, but the latter did not.
For these reasons, there was no error in the magistrate’s finding that there was an
accident of a relatively serious nature. Ground 2 is not made out.
Issue 3: Did the court below err in its determination of the cause of the accident?
38. The finding of the court below that is the subject of challenge was:
In terms of objective seriousness, there was a motor vehicle accident that appears to have done some significant damage to your motor vehicle and it appears that you had been drinking full strength beer for a period immediately before the motor vehicle accident.
I infer that the accident was caused or at least significantly contributed to by [the
appellant’s] decision to drink alcohol. However, there were no passengers in the motor
vehicle at the material time and other than some damage to bollards, which is not quantified,
there were no other persons or property involved in that motor vehicle accident.39. The appellant argued that this inference as to a “significant” contribution by the
magistrate was a factor adverse to the appellant that had not been proven beyond reasonable doubt (again citing Filippou). He submitted (through his counsel) that there was no evidence before the court below as to what caused the crash, other than the
appellant’s speculation that he fell asleep at the wheel, which he maintained was due to
his long work hours.
40. The appellant contended that if the court below was not satisfied of the explanation of tiredness as the cause of the accident, it ought to have proceeded to sentence on the basis that neither of the possibilities (being tiredness or alcohol) were known, or (I interpolate) conclusively known. The appellant argued that whilst alcohol consumption
was certainly a factor in the accident, a finding that alcohol “caused” or “significantly
contributed” to the accident “takes it further than the evidence would permit.”
The respondent argued that the appellant’s solicitor in the hearing below appeared to
accept that it was open to infer that the appellant’s consumption of alcohol, combined
with his tiredness, was a factor that contributed to the motor vehicle accident. The
transcript from the hearing was as follows:MR SHARMAN: … it’s perhaps difficult to discern sometimes whether or not it is attributable
to the alcohol or to the fact that he was very tired.
HER HONOUR: well, there’s a very strong inference if he’s worked long hours and has three
full strength beers and then gets in a motor vehicle.
MR SHARMAN: Yes.
HER HONOUR: I would have thought there’s a clear inference.
MR SHARMAN: But a combination of that and the long hours. I do say this, if your Honour pleases: that is an aggravating feature, but it is still a low range offence. It still is an error of
judgement and it’s still one committed by a person who is otherwise of exemplary character.
42. The respondent submitted that considering the circumstances surrounding the offence and the motor vehicle accident, an inference that alcohol was a significant contributing factor is a matter of common sense, but in any event, as seen from the above extract,
the appellant’s legal representative accepted that alcohol contributed to the accident and
that this was an aggravating feature.
43. In reply, the appellant argued that whilst the solicitor appearing in the court below for the appellant accepted that alcohol was a factor, there was no concession that it was a
“significantly contributing factor” to the motor vehicle accident.
Consideration
44. It was not disputed that the appellant was tired, that he had three alcoholic drinks and that he had a motor vehicle accident. It is also the very clear purpose of the legislation to try and deter people from taking the risk of drinking alcohol and then driving a motor vehicle, as it has long been accepted that people who are affected by alcohol are more likely to have an accident.
45. I accept that as a matter of common sense, the fact that the appellant had consumed alcohol and was tired increased the likelihood of him having an accident. That falls short of actual proof (inferred or otherwise) that either of those conditions caused this accident.
46. If the question of causation between the PCA reading and the motor vehicle accident was an element of the offence and the appellant had pleaded guilty to the offence, then of course that would function as a concession. However, it is no part of the offence to which the appellant pleaded guilty that there be a causal connection between the consumption of alcohol and the accident that occurred. Indeed, the RT Act very deliberately steers away from a need to demonstrate proof of cause and effect, in terms of any impairment of judgment or driving ability. There is no definition of causation in the RT Act.
47. Similarly, the Statement of Agreed Facts did not include an agreement that the consumption of alcohol significantly contributed to the accident and the concession of the legal representative (extracted at [41] above) only went as far as accepting that alcohol was a contributing factor.
48. In other contexts, legal causation may be established by a finding that something was a contributing factor, but this is not always the case, and the additional finding of
“significant” or “substantial” contribution may be required (see for example, s 49A Crimes
Act 1900 (ACT)). Having regard to the exchange between the appellant’s representative
and the magistrate, I am not satisfied there was any intention to concede causation or significant contribution, and the cause of the accident was not otherwise proven by the prosecution beyond reasonable doubt.
49. The context in which the finding was made (included in the extract of the transcript at [38] above) was a consideration about the objective seriousness of the offence. It cannot be said that the challenged finding was anything but an aggravating factual circumstance on sentence.
50. I must therefore accept that on the evidence that was before the magistrate, without a concession, and absent an express statutory presumption of causal connection, a clear inference is not enough. The evidence falls short of supporting a finding, beyond
reasonable doubt, that the alcohol consumption was a “significant” contributing factor or
that it “caused” the accident.
51. In contrast to the finding considered under Issue 1, the addition of these few words cannot be categorised as loose language because the finding itself is a substantive finding about legal causation. Further, causation was a matter expressly raised in the
exchange between the appellant’s legal representative and the magistrate, with the
representative submitting that it was difficult to discern whether or not the accident was attributable to the alcohol or to the fact that the appellant was very tired, or ultimately a combination of the two.
52. In reasons that were otherwise sound and carefully considered, this conclusion, which is based essentially on the legal nuances created by a few words, amounts to what might
be described as a technical legal error. The magistrate’s finding as to what caused the
accident was unnecessary, as the relevant aggravating circumstance was simply the fact of the accident and this was accepted. However, the finding having been made, and it
not being possible to state with certainty that the finding played no part in the magistrate’s
reasoning on sentence given the context in which it was made, the conclusion must be
that there was a legal error and accordingly, Ground 3 succeeds.
Issue 4: Did the court err in its assessment that there were no extenuating circumstances?
53. When considering whether to exercise its discretion under s 17 of the CS Act, the court
below found that there were “no extenuating circumstances”.
54. The appellant submitted that the onus of proving facts that are favourable to him was on the balance of probabilities. He argued that there was evidence admitted before the court
below, with no objection, as to the appellant’s long work hours due to the Covid-19
pandemic and the considerable financial pressure his business was under. In this Court,
the appellant’s counsel argued that his long work hours and financial pressure as a
person responsible for the operation of a significant multinational business provided the
context for why the appellant had a “lapse in judgment”. It was argued that the appellant “would never commit an offence like this under ordinary circumstances”. In such
circumstances, it was argued that a finding of no extenuating circumstances was not
open to the court below.55. The respondent argued that the court below was correct in finding that there were no extenuating circumstances. Referencing s 17(3)(c) of the CS Act and Proud at [38], it was submitted that extenuating circumstances are those that relate directly to the offence that was committed, rather than merely any broad extenuating circumstance of the
offender. Personal stress may be relevant under s 17(3)(c) if “there is a direct link
between the personal stress and the offence”: Proud at [38]. The respondent argued that
in this case, the circumstances put forward by the appellant are not directly related to the
offending. The offence here was described by the appellant as a “lapse in judgment”. In
the court below, it was argued that the appellant had simply not turned his mind to
whether he would be over the legal limit.56. The respondent further argued that the court below had correctly acknowledged that the appellant was aware that he was working longer hours and that he was tired. As such,
the appellant’s knowledge about how tired he was arguably increased his moral
culpability and should therefore not be considered an extenuating circumstance.
Consideration
57. An extenuating circumstance in which the offence was committed might be where a
person was not expecting to drive but was faced with a medical emergency (Olds v Daire (1981) 29 SASR 133 at 135-6), or a threat of harm to children which caused them
to be traumatised and needing to be removed from a location late at night (Hambrook v
Duke [2014] ACTSC 203 at [58]).58. The fact that the appellant was stressed because his business was under financial
pressure and he had been working longer hours than usual was not an “extenuating circumstance”. It may have been the reason the appellant chose to drink on the night in
question. However, it was not directly related to the choice to drive following the consumption of three alcoholic drinks. There was no immediate need for the appellant to drive.
59. There was no error in the finding of the court below that there were no extenuating circumstances. Ground 4 is not made out.
Should the Court on appeal re-exercise the sentencing discretion?
60. Ground 3 of the appeal has succeeded. In the event that an error of law was established, the appellant has tendered further evidence as to the consequences upon him arising from any conviction. These stem from the fact that the appellant is a small business owner and the business is of an international nature. Prior to the Covid-19 pandemic, the appellant was required to engage in frequent international travel for business purposes, including as managing director with oversight of his business operations in China and participating in trade shows in Europe, which he did using what is known as the APEC Business Travel Card. Such a card removes the requirement for a visa to be obtained for entry into countries that are members of APEC. A criterion of eligibility for the card is that the traveller has never had a criminal conviction recorded. The unchallenged evidence was that without access to the card, the appellant would still be able to apply for a visa for entry into countries such as China, but it would be a longer and more difficult process, and there was no flexibility in the entry and exit dates once the visa was
issued. This will have repercussions for the appellant’s ability to maintain his
international business connections, to run or have oversight of the business group in China, and to engage in frequent travel abroad with as much flexibility as possible, a matter of increased importance due to the economic downturn in the profitability of the business as a result of the Covid-19 pandemic. In short, the conviction itself will have a disproportionate effect on this particular offender, with a significant impact on his livelihood.
61. None of that evidence was before the court below and the respondent accepted that it would be relevant under s 33(1)(r) of the CS Act. It is also a matter of relevance to whether to make a non-conviction order, and is able to be taken into account pursuant to s 17(4) of the CS Act.
62. I have already considered the nature and circumstances of the offence through dealing with the issues on appeal (including for the purposes of s 17(3)(b) the objective seriousness of the offence). I am very mindful that the appellant came to the attention of police because of the manner of his driving and the fact that the appellant had a motor vehicle accident. For the Court not to enter a conviction in that circumstance would be a very rare occurrence. However, as stated in Proud at [42]-[47], although a non- conviction order following a finding of guilt is an exceptional outcome, it does not require exceptional circumstances.
63. The evidence as to the impact on this particular offender, when combined with the matters that follow, is sufficient in my view to create a case for an exceptional outcome in the exercise of the discretion pursuant to s 17 of the CS Act. Applying the principle in Kentwell, it appears to me that a different sentence is warranted.
64. The other relevant factors under s 17(3) and under s 33 are otherwise unchanged from those considered in the court below, namely:
(a)
The appellant pleaded guilty (although this was in the context of an overwhelming case for the respondent).
(b) His driving record is exemplary and unblemished.
(c) Up until this offence his character was also unblemished, including no prior criminal history or antecedents, and giving service to his country through membership of the Royal Australian Navy for 10 years. (d) He attempted to make reparation in cleaning up the road from the debris of the motor vehicle. (e) He has undertaken the Think Ahead course as a means of education and demonstration of remorse. 65. Specific deterrence is a minimal consideration given the other matters stated above.
General deterrence remains a very significant matter and I echo the magistrate’s words
in the court below that nobody deserves to get a call from the police to say that their loved one has been killed or seriously injured because the appellant chose to have a few drinks and then hop behind the wheel of a motor vehicle. That was the risk and the appellant was very fortunate on this occasion that the bollards the car hit were not people, and that no other vehicle or person was involved.
66. However, the objective of general deterrence is not only met by the court recording convictions. The imposition of a good behaviour order still publicly denounces the
appellant’s conduct and holds him accountable. The very public process resulting in this
judgment reinforces that public denouncement, in addition to acting as a salutary lesson to the appellant and others. That process involves the cost of litigation, the imposition of punishment, the public shame and the private embarrassment of having to approach the family doctor of 30 years, personal friends, employees, and colleagues for character references, the appellant undertaking a driver education course related to alcohol and drug awareness and therefore being branded a drink driving offender, and the enduring knowledge that when he crashed the car, he could have killed someone, including himself.
67. As foreshadowed, I am persuaded that this is a case where the discretion under s 17 of the CS Act should be exercised, but on the condition that the appellant be subject to a 12-month good behaviour order.
Orders
68. The orders of the Court are:
(1) The appeal is upheld.
(2) The orders of the Magistrates Court made on 13 August 2020 in relation to charge
CC2020/5348 are set aside and in lieu thereof:
(a) a non-conviction order is made pursuant to s 17(2) of the Crimes (Sentencing) Act 2005 (ACT). (b) A good behaviour order is made pursuant to ss 13 and 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT), with the appellant required to sign an undertaking to comply with the good behaviour obligations prescribed in s 86(1) of the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from the date of these orders. I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.
Associate:
Date:
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