Damon Hoyer v Luke Burow
[2014] ACTMC 2
•1 MAY 2014
DAMON HOYER V LUKE BUROW
[2014] ACTMC 2 (1 MAY 2014)
APPLICATION OF PERIOD OF DISQUALIFICATION – application of tariff or range – disqualification as protective or penalty – default period – minimum period
Corporations Act 2001 (CTH)
Crimes (Sentencing) Act 2005 (ACT) ss33 & 7
Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss19(1), 32 & 33
Road Transport (General) Act 1999 (ACT) s65
Explanatory Statement, Motor Traffic Amendment Bill (No 3) 1999 and Motor Traffic (Alcohol and Drugs Amendment) Bill 1999 introducing the Road Transport Legislation Amendment Act 1999 clause 6
Australian Road Rules r132(1)
Application by the Attorney General under Section 37 of the Crime (Sentencing Procedure) Act 1999 (NSW) for a Guideline Judgement Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of The Road Transport (Safety and Traffic Management) Act 1999 (Number 3 of 2002) [2004] NSW CCA 303; (2004) 61 NSWLR 305
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323
Barac v Thexton [2008] ACTSC 137; BC200810945
Fitzgerald v Police [2000] SASC 168; (2000) 31 MVR 97
Hammond v Road Transport Authority [2006] ACTSC 125; BC200610937
Hili v The Queen [2010] HCA 2; (2010) 242 CLR 520
Hill v Wenham [2012] ACTSC 156; BC201208449
Hugg v Driessen [2012] ACTSC 456; (2012) 261 FLR 324
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 257
McGreogor v Maguire [2008] ACTSC 7; BC200800308
Mwauluka v Turkich [2013] ACTSC 1; BC201300015
Newham v Cogle [2012] ACTSC 76; BC201203447
Piper v Hall [2013] ACTSC 207; BC201313722
Rich v Australian Securities And Investments Commission [2004] HCA 42; (2004) 220 CLR 129
Senderowski v Mothersole [2013] ACTSC 217; BC201314098
Scott v Wynants [2009] ACTSC 62; (2009) 4 ACTLR (ACTR) 13
Sheather v Bishop [2012] ACTSC 77; BC201203446
Taylor v Samuels (1977) 16 SASR 266 at 283-4
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
No CC 79 of 2014
Chief Magistrate: Walker
Magistrates Court of the ACT
Date: 1 May 2014
IN THE MAGISTRATES COURT OF THE )
AUSTRALIAN CAPITAL TERRITORY ) No. CC 79 of 2014
BETWEEN:DAMON HOYER
Informant
AND:LUKE BUROW
Defendant
DECISION
Magistrate: Chief Magistrate Walker
Date: 1 May 2014
Place: Canberra
The defendant is charged with having contravened section 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (“the Act”) on 28 November 2013, as a first offender with a prescribed concentration of alcohol on his breath in the level 4 or high range. He is further charged with having failed to keep to the left of centre on a two way road, contrary to rule 132(1) of the Australian Road Rules on the same date. The defendant entered pleas of guilty on his second occasion before the court.
Submissions were made regarding mitigating factors said to be applicable to the penalty, in particular the period of disqualification to be imposed. In short, the submissions on behalf of the defendant were to the effect that a period of disqualification should be set with regard to the tariff or range identified by then Chief Justice Higgins in the decision of Scott v Wynants [2009] ACTSC 62; (2009) 4 ACTLR (ACTR) 13. In that decision His Honour noted at paragraph 14 that:
It is significant that a statistical analysis of previous matters of a like kind, that is high range repeat offenders in the ACT Magistrates Court, reveals a routine reduction of the default period from five years to between 18 and 24 months. That is consistent with the outcome of the matter noted by Connolly J in Hammond v Road Transport Authority [2006] ACTSC 125; BC200610937.
The defendant submitted that determination of the period of disqualification should be approached consistent with ordinary sentencing principles and that the default period should not be treated as though it were a statutory maximum. Consistent with that an instinctive synthesis approach should be adopted rather than a mathematical calculation. The latter was said to offend sentencing principles as detailed in the High Court decision of Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584. Gaudron, Gummow and Hayne JJ observed in that decision at para 74:
Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
The defendant further submitted that the disqualification period was protective rather than a penalty, also in reliance on the approach said to have been taken by Higgins CJ in Scott v Wynants.
The prosecution sought leave to file written submissions, which leave was granted, with the defence being granted leave to file written submission in reply. The prosecution submits, in summary, that the process for determination of a period of disqualification in the Territory, in light of a number of decisions from the Supreme Court, is not settled.
Insofar as the decision of Refshauge J in Newham v Cogle [2012] ACTSC 76; BC201203447 and Sheather v Bishop [2012] ACTSC 77; BC201203446 are said to be authority for the proposition that a sentencer, in setting a licence disqualification, ought not start from the default disqualification period as if it were a maximum or tariff but rather adopt an approach of instinctive synthesis, this is said to be contrary to the approach taken by Penfold J in obiter dictum in the decision of Mwauluka v Turkich [2013] ACTSC 1; BC201300015 and Hill v Wenham [2012] ACTSC 156; BC201208449.
In the latter case, in particular, the prosecution submit her Honour appears to approach the determination of a disqualification period from the starting point that there needs to be a basis upon which a reduction is justified before having regard to factors which might determine the level at which it should be set.
The prosecution further submits that using ordinary principles of statutory interpretation, the period of disqualification, which is described variously as automatic and default in sections 32 and 33 of the Act, is the starting point unless there are sufficient and appropriate reasons to deviate from it.
The prosecution submit that the decision to deviate from the default period having been made, the appropriate approach is not to impose a disqualification without reference to the default disqualification period but rather to deviate from that period to the extent necessary to take into account the reason for which the period should be reduced. This, it is submitted, is consistent with the purposes of the Act and with amendments to the Act in 1999 by removing the notion of a maximum driving licence disqualification period and replacing it with a list of default and minimum disqualification periods.
Consideration
10.I have some sympathy for the submission put on behalf of the prosecution that the current position in the ACT in respect to the setting of a disqualification period other than automatically applying or applying by default is not settled. I note the significance of this issue. Approximately 25% of all criminal matters in this court, being well in excess of 1,000 in the last recorded year, are in relation to offences of driving with in excess of the prescribed concentration of alcohol.
11.In distilling submissions of both parties and reviewing the authorities upon which they are based, along with a number of other recent decisions of the Supreme Court, it appears that there are two broad questions, the answers to which remain unclear on the current state of the authorities.
12.Question 1: Upon what basis should the court determine not to apply the automatic or default period of disqualification pursuant to sections 32 and 33 of the Act? Does that determination require that the circumstances of either the offence or the offender or both are outside of the usual case? If so, is the usual case to be determined having regard to the criteria detailed in the New South Wales guideline judgment or some other criteria?
13.Question 2: Having determined to apply a period of disqualification other than the automatic or default period pursuant to sections 32 and 33 of the Act, other than an increased period of disqualification pursuant to section 65 of the Road Transport (General) Act 1999, is the period set to be determined as a reduction from the automatic or default period having regard to usual sentencing principles or is it to be set having regard to a range set by the minimum and automatic or default periods or having regard to some other tariff or range?
14.That the answers to these questions remain unclear in my view follows from a review of the authorities in respect to a number of issues.
Penalty
15.In approaching the consideration as to how the period of disqualification should be determined it is useful to consider whether the disqualification period is in fact a penalty. This question arises in part because absent any action addressing the issue by the judicial officer a disqualification period will apply consequent upon a conviction in relation to an offence against section 19(1) of the Act; that is, it will apply by operation of law. So much was noted by Refshauge J in the decision of Barac v Thexton [2008] ACTSC 137; BC200810945 at paragraph 16 in considering whether there was a right of appeal from the setting of a period of disqualification. Nonetheless, there is clear authority for the view that a period of disqualification is in fact a penalty.
16.In Scott v Wynants, Higgins CJ referred to the New South Wales Guideline Authority in Relation to High Range Drink Driving, (Application by the Attorney‑General Under Section 37 of the Crime (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (Number 3 of 2002) [2004] NSW CCA 303; (2004) 61 NSWLR 305 (“the Guideline Judgment”).
17.Whilst the Guideline Judgment is not binding in the ACT, the approach of Higgins CJ and subsequent decisions of the ACT Supreme Court confirm it as a useful authority in determining the approach to similar issues in this jurisdiction. In the Guideline Judgment, Howie J, whose decision was adopted by the rest of the Court, approached licence disqualification as part of the sentence to be imposed.
18.Subsequently the decision of Rich v Australian Securities and Investment Commission [2004] HCA 42; (2004) 220 CLR 129 considered this issue in the context of periods of disqualification of company directors pursuant to the Corporations Act 2001 (Cth). A majority of the High Court concluded that such a disqualification was a form of penalty in that it was both protective of the community and punitive of the subject. Significantly, McHugh J, in a separate decision provided further explanation for this approach. His Honour noted in the first paragraph of his reasons for decision:
Despite frequent statements by the judges who administer the legislation that the purpose of the disqualification provisions is protective what the judges actually doing in practice is little different from what judges do in determining what orders or penalties should be made for offences against the criminal law: elements of retribution, deterrence, reformation and mitigation, as well as the objective of the protection of the public inhere in the orders and periods of disqualification made under the legislation.
19.His Honour went on to say in the following paragraph:
Fixed period of disqualification suggests punishment rather than protection in the same way that disqualification from driving for a period is a punishment rather than an act protective of the public.
20.In Barac v Thexton, Refshauge J concluded that an order for disqualification forms part of the sentence and at paragraph 48 noted:
As part of the sentence then the period of disqualification which is considered by the court must include the determining of the personal circumstances of the offender along with all other relevant matters connected with the offender and the offence, including good character and extenuating circumstances under which the offence was committed: Fitzgerald v Police [2000] SASC 168; (2000) 31 MVR 97 at 100; Taylor v Samuels (1977) 16 SASR 266 at 283-4. That is to say the period of disqualification must fit the offending and the personal circumstances of the offender.
21.A similar approach was taken by his Honour in Hugg v Driessen [2012] ACTSC 456; (2012) 261 FLR 324 and Newham v Cogle. It follows that at least once the default or automatic period of disqualification is altered at the discretion of the sentencing magistrate, the magistrate engages in a sentencing exercise in setting the alternative disqualification period.
22.What is the starting point for setting an alternative disqualification period? Generally in sentencing it is inappropriate to look at the maximum penalty and deduct mathematically from that point. This issue is addressed in the decisions of Markarian v The Queen HCA 25; (2005) 228 CLR 257 and Wong, supra. The application of the Markarian decision was clarified in respect to setting of a disqualification period in the ACT by Higgins CJ in McGreogor v Maguire [2008] ACTSC 7; BC200800308. His Honour observed at paragraph 27:
However, that is not to say that transparency of reasoning and allowing relevant and quantified discounts for a plea of guilty, cooperation and the like might not be appropriate and further, relevantly, there is also the important qualification that relevant legislation may dictate a particular approach, so it is with the Road Transport (Alcohol and Drugs) Act, it does not require the sentencer to impose a particular period of disqualification, however, the sentencing court may reduce that penalty to not less than a particular figure.
23.Further, if an approach consistent with the New South Wales Guideline Judgment is to be adopted, as the ACT authorities generally indicate, then the default period should be applied unless there are sufficient and appropriate reasons for reducing the period that are capable of being explained by the court before such a step is taken.
24.Those reasons should take into account the scheme of the Act and the significance of parliament's view that the automatic period is the period of disqualification to apply in the usual case. Parliamentary intent as to the application of the automatic or default period can be discerned to some extent by consideration of the explanatory statement relevant to the introduction of the term "default disqualification".
25.The explanatory statement to the Motor Traffic Amendment Bill (No 3) 1999 and Motor Traffic (Alcohol and Drugs Amendment) Bill 1999 which introduced the Road Transport Legislation Amendment Act 1999 stated: “clause 6 amends section 33 of the principal Act which establishes penalties for repeat offenders. The table of penalties is amended by removing the list of maximum driving licence disqualification periods and replacing it with a list of default disqualification periods and minimum disqualification periods.”
26.Whilst detailed explanation is not provided as to what was sought to be achieved by replacing the concept of maximum with the concept of automatic or default disqualification, ordinary usage of those terms would suggest that the amendment sought to bring about the imposition of the specified periods of disqualification in the usual case.
27.Does a tariff or range apply? This approach does not support the submission made by the defendant that a tariff or range of 18 to 24 months disqualification for a high range offender is a starting point. Whilst Higgins CJ referred to statistics to that effect in Scott v Wynants and noted that this was significant, that significance did not extend to endorsement of this as the usual range. His Honour noted at paragraph 33:
It has, clearly enough, been common for the default period to be reduced usually to between 18 months to two years. The survey does not, of course, address the question as to the criteria adopted for such reductions.
At paragraph 32 His Honour stated that the default is in effect the usual period. In noting that the default period of disqualification is in fact the starting point for determining the period of disqualification, unlike the maximum period for a sentence, His Honour also noted at paragraph 35:
It is also apparent that the usual sentencing considerations for imposing a lesser or greater level of penalty than the norm would be relevant.
29.I note the observations by Refshauge J in Newham v Cogle at paragraph 46:
To start from the automatic or default period and then reduce it is as if it is a maximum or tariff is, in my view, an error.
30.This observation appears to be somewhat at odds with the approach in the Guideline Judgment to automatic disqualifications as endorsed by Higgins CJ in Scott v Wynants.
31.How is a period of disqualification other than the default or automatic period to be arrived at? In Newham, Refshauge J appears to postulate a two stage test. The first stage is to identify whether there is a sufficient and appropriate reason to reduce the period of disqualification from the automatic or default period.
32.The second stage appears to be that if there is a reason not to apply the default period, to determine what that period should be applied in order to both penalise the offender and protect the public. Penfold J in Mwauluka v Turkich queried whether there was, in fact, a two stage approach. At paragraph 43 Her Honour stated:
I confess to being unsure of the significance of the two stage process recommended by His Honour, given that the matter relied upon in Sheather to find that the disqualification period should be reduced (the hardship caused by the penalty, in particular in relation to the offender's employment) seems to be simply one of the factors relevant in determining an alternative disqualification period and is also considered for that purpose by His Honour. I am not sure on what basis any one of those factors should be elevated to the position of justifying a threshold decision that the disqualification period should be reduced.
33.Whilst Her Honour's observations were obiter dictum in the context of that decision, they raised the issue of what approach is to be taken to setting an alternative disqualification period.
34.As to the identification of a range of disqualification periods for level 3 and 4 offenders in the ACT, Penfold J in Piper v Hall [2013] ACTSC 207; BC201313722 referred to 13 Supreme Court decisions to which her attention had been drawn. She noted that they mainly covered first offenders or those whose earlier offences were five or more years prior to the relevant conviction. She noted that few of the disqualification periods imposed on appeal exceeded 12 months.
35.Her Honour quoted from Higgins CJ in Scott v Wynants as to the significance of the identified range. She appears, however, not to have considered his Honour's reservations, nor the decisions of other courts as to the limited utility of ranges. Her Honour went on to have regard to the appropriate sentencing range apparently indicated by the cases she had been referred to. She resentenced consistent with that range. In Senderowski v Mothersole [2013] ACTSC 217; BC201314098 Her Honour stated at paragraph 18:
It is true that this court appears to have identified a sentencing range for repeat offenders with blood alcohol at level 3 and 4 in the order of 18 to 24 months disqualification.
36.In 2009 in Scott v Wynants data was put before Higgins CJ. A reading of the whole of His Honour's decision highlights his concern regarding the reliability of the data, despite the fact that his finding on the appeal was not outside of the range identified. His Honour's concern was, with respect, consistent with the caution emanating from the High Court regarding the application of ranges, most recently in the decisions of Barbaro & Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323 at paragraphs 40 to 41 in particular. In those paragraphs their Honours stated:
The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other more or less comparable cases. Consistency of sentencing is important but the consistency to be sought is consistency in the application of relevant legal principles and not numerical equivalence.
37.As the plurality pointed out in Hili v The Queen [2010] HCA 2; (2010) 242 CLR 50:
In seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed but that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.
38.The range identified in Scott v Wynants, which now appears to have some albeit equivocal Supreme Court approval as a range or tariff, falls far below the automatic periods provided for by the legislature. The basis for identification of that range is non-existent.
39.A generalised application of such a range may reflect a failure to have regard to the legislatively indicated approach to the setting of periods of disqualification. Further, this Court is bound by High Court authority to the effect that the particular circumstances of each case must be considered without being bound to a range which bears no clear correlation to the factors in that case.
40.What factors are to be taken into account in setting the period of disqualification? Although operating under a slightly different statutory regime the persuasive authority of the New South Wales Guideline Judgment is recognised by the ACT Supreme Court. The factors identified by Howie J as mitigating or aggravating have been regarded in the ACT as relevant to the reduction of any period of disqualification. However, little regard appears to have been had to Howie Js other comments in respect to setting of a disqualification period. For example, at paragraph 127, his Honour stated:
It appears to me that courts are too ready to reduce the automatic period and to choose the minimum disqualification period as the alternative.
41.His Honour noted that this failure of the courts to have sufficient regard to the automatic disqualification period prescribed by Parliament was supported by a statistical analysis, going on to say, as is often quoted, that there should be sufficient and appropriate reasons for reducing the automatic period. His Honour also said that those reasons should take into account the scheme of the Act and the significance of Parliament's view that the automatic period is to apply in the usual case.
42.Thus, whilst there are a number of clearly identified factors to be taken into account in determining the setting of a period of disqualification alternative to the automatic or default period, the current state of the authorities seems to be that the automatic or default period should apply in the “usual” case.
43.General considerations in relation to the setting of a period of disqualification include the protection of the community and punishment of the offender and, whilst far from exhaustive, specific considerations include a defendant's plea of guilty (although I note that this is almost always the outcome in relation to this type of matter), family circumstances including the need to care for children, the loss of employment or impact on employment prospects and economic dependency.
Outcome in relation to this case
44.This defendant entered a plea of guilty at an early stage in relation to an offence of driving as a first offender at the level 4 range. This offence carries a maximum penalty of a fine of up to $2,800 or nine months imprisonment or both. It also attracts an automatic or default disqualification from holding or obtaining a driving licence of three years, reducible to no less than six months if the circumstances warrant that. As noted previously, the defendant also entered a plea of guilty in relation to failing to keep to the left of the road, contrary to the Australian Road Rules, an offence which carries a fine of up to $2,800.
The statement of facts indicate that he was stopped at 11.40pm on 28 November 2013 as a result of the manner of his driving. He was driving the wrong way down Northbourne Avenue on a Thursday evening a few weeks before Christmas. Following breath analysis he was found to have a reading of 0.154. He was issued with an immediate suspension notice, although I note that he was, in fact, the holder of a New South Wales driving licence and that that notice would have effect only in relation to his ability to drive within the ACT.
46.On the subsequent information provided, the defendant was travelling a relatively short distance into town from his home suburb to pick up his girlfriend but was, however, intending to travel back by the same means with her as a passenger.
47.I consider the offence as towards the mid-range of seriousness for an offence of its type, noting that the defendant's manner of driving and the fact that he intended to travel with a passenger, along with the fact that the road at the time was likely to be reasonably busy.
48.The defendant is 32 years of age with no prior criminal history. References were received from a co-worker, Mr Mitic and from a Ms Bull. They indicated that the defendant expressed remorse, which was confirmed also by his early plea of guilty. They also indicated that his behaviour was out of character, again confirmed by his lack of prior criminal history. The defendant had, at the time this matter came to sentence, attended the relevant driver education program.
49.The defendant is a single person who has lived in the ACT for now in excess of 18 months and is employed in the Australian Public Service. He has held his driver licence for in excess of 15 years. No particular requirement for a driving licence beyond the usual convenience was identified in submissions.
50.On his pleas of guilty the defendant is convicted in respect to both matters. I have had regard to section 7 and 33 of the Crimes (Sentencing) Act in determining the appropriate penalty. In particular, I have had regard to the defendant's prior good character and remorse.
51.I am satisfied that a financial penalty properly addresses the need for both specific and general deterrence on this occasion. The defendant will be fined the sum of $900 in respect to the PCA offence. I make no order in respect to the period of disqualification, being satisfied that this case falls within what can be properly described as the usual case. In respect to breach of the Australian Road Rules I impose a financial penalty of $300. That is a total of $1,200.
I certify that the preceding
Fifty-two (51) paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Magistrate Walker.Associate: Amy Winner
Date: 19 May 2014
Solicitor for the Prosecution: Ms P Halova
Director of Public Prosecutions ACT
Solicitor for the Defendant: Mr P Edmonds
Paul Edmonds and Associates
Date of judgment: 1 May 2014
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