Edward Glass v Harry Hains

[2012] ACTSC 173

EDWARD GLASS v HARRY HAINS                
[2012] ACTSC 173 (5 November 2012)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19(1), s 4F.

Crimes Act 1900 (New South Wales), s 556A.

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 24 of 2012

Judge:             Burns J
Supreme Court of the ACT

Date:              5 November 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 24 of 2012
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:EDWARD GLASS

Appellant

AND:             HARRY HAINS
  Respondent

ORDER

Judge:  Burns J
Date:  5 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

1.          The appeal is dismissed.

2.          The consequential orders are that the conviction and penalties imposed by the sentencing magistrate are confirmed that that the disqualification will expire on 24 April 2013.

1. On 29 March this year the appellant was convicted of an offence contrary to section 19 subsection (1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) in that he on 12 January 2012 drove a motor vehicle on a road and had within the relevant period the prescribed concentration of alcohol in his breath. On this occasion the reading was 0.075 which is a level 2 reading. The maximum penalty with respect to that offence is a fine of $1,100 together with an automatic disqualification from holding a licence of 12 months. However, the court can, in its discretion, reduce that automatic disqualification to a period not less than 3 months.

2. The appellant was fined $550 and disqualified from holding or obtaining a licence for a period of 6 months. I note that the appellant had a prior conviction, or at least a prior finding of guilt with respect to an offence of drink-driving, within the middle range at the Macksville Local Court in New South Wales in July 1988. On that occasion the matter was disposed of under section 556A of the Crimes Act 1900 (New South Wales).  Such a disposition involves a non-conviction order.

3.          On 5 April this year the appellant filed a notice of appeal in relation to the sentence imposed by the learned sentencing magistrate.  The sole ground relied upon by the appellant is that the learned sentencing magistrate erred in placing excessive weight on general deterrence.

4. As at 29 March 2012 when the matter was dealt with by the sentencing magistrate the appellant was 69 years old and had held a driver's licence for over 50 years. As I noted, he had one prior matter which was dealt with without conviction in 1988. Pursuant to the provisions of section 4F of the Road Transport (Alcohol and Drugs) Act 1977, the appellant was nevertheless a repeat offender with respect to the offence dealt with by her Honour.

5.          It is accepted by Mr Sharman, who appears on behalf of the appellant, that the sentencing magistrate acknowledged the appellant's plea of guilty, his remorse, his prior good character, his driving history and his general need for a licence, particularly in relation to ongoing treatment in relation to various medical conditions.  Further, the sentencing magistrate acknowledged that the prior finding of guilt with respect to the earlier drink-driving matter was a long time ago. 

6.          Whilst discounting specific deterrence as a major sentencing factor, the learned sentencing magistrate did, however, consider that general deterrence still remained a significant issue with respect to sentencing.  The appellant complains of a portion of the sentencing comments of her Honour in which she said:

I cannot understand why, but it is clearly the case that people in this respect seemed to have no particular regard to the law or very little.  It is for that reason that general deterrence, as I said before, is always a significant factor in how I deal with these matters.

7.          It is in that respect that the appellant contends error.  I can see nothing in what the learned sentencing magistrate said either in that portion of her judgment or in her sentencing comments generally which indicates error.  There is nothing in that portion of the sentencing comments which suggest that she has given greater weight than she should to the aspect of general deterrence.  It is a given, I would think, that general deterrence remains a very significant sentencing factor with respect to drink-driving offences, even offences in the level 2 range. 

8.          On this occasion the reading was quite high in the level 2 range and even accepting that the appellant had an honest but not reasonably held belief that his blood alcohol level was below the prescribed concentration of alcohol, the weight given by her Honour to general deterrence, in my opinion, was not excessive.

9.          For that reason the appeal must be dismissed.

10.       The consequential orders I make are that the conviction and penalties imposed by the sentencing magistrate are confirmed that that the disqualification will expire on 24 April 2013.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:       James Middleton

Date:              26 November 2012

Counsel for the appellant:  Mr Sharman
Solicitor for the appellant:  Rachel Bird & Co.
Counsel for the respondent:  Ms McFarland
Solicitor for the respondent:  Office of ACT Director of Public Prosecutions
Date of hearing:  5 November 2012
Date of judgment:  5 November 2012