Dixon v David

[2012] ACTSC 42

MILES DIXON v JOSHUA DAVID
[2012] ACTSC 42 (6 March 2012)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 109 of 2011

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              6 March 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 109 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MILES DIXON

Appellant

AND:JOSHUA DAVID

Respondent

ORDER

Judge:  Higgins CJ
Date:  6 March 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The appellant enter a good behaviour order for a period of six months. 

1. This is an appeal from a decision of his Honour, Magistrate Lalor, convicting the appellant of the offence of a level two drink driving, disqualifying him from driving for a period of two months, and fining him $300 together with court costs and victims levy. 

1. The appeal, as Mr Edmonds’ submissions make plain, relates primarily to the recording of a conviction on the basis that the recording of the conviction entails the disqualification for a period of two months which is, it is submitted, inappropriate in the circumstances. 

1. The question is whether his Honour erred in declining the invitation to apply s 17 of the Crimes (Sentencing) Act 2005 and conditionally dismiss the charge on terms that a bond be entered into for a period of six months.  It is not suggested it should have been dismissed without any particular penalty. 

1. The circumstances in favour of the appellant were quite compelling.  The blood alcohol reading was 0.061, marginally above the level which applied to him of 0.050.  He was detected by virtue of a random breath test, and there was nothing about the manner of his driving which drew attention to him. 

1. It was put on the appellant’s behalf that he made an error of judgment arising from his failure to take account of the fact that he was drinking full-strength beer rather than light beer.  While one might say that is a fairly egregious error, the honesty of the error was not challenged. It was also the case that there was likely to be relatively few other road users about at the time, which is, of course, a relevant matter.

1. The appellant had held a driver’s licence for 10 years and had no prior convictions.  It was his first conviction of any kind.  That much was undisputed.

1. It was also put on the appellant’s behalf that he, and there was evidence to support it, resided with his elderly and infirm grandfather who is incapacitated and needs to be attended to on a daily basis, often requiring the use of a motor vehicle.  Of course, the effect of the sentence upon members of the family of the offender is a relevant matter to sentencing.

1. And there was, perhaps more significantly than that even, the letter from Senator Stephens indicating that she was based in Goulburn and that the appellant needed a…