Ian Ross v Lara WILLIAMS
[2012] ACTSC 168
•5 November 2012
IAN ROSS v LARA WILLIAMS
[2012] ACTSC 168 (5 November 2012)
APPEAL AND NEW TRIAL – appeal from Magistrates Court – appeal against sentence – disqualification of licence – appeal upheld.
TRAFFIC LAW – offences – driving with the prescribed concentration of alcohol – period of disqualification – relevance of extension of meaning of “repeat offender” – manifestly excessive.
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentencing – not a mathematical approach – need for instructive synthesis – setting proper period for licence disqualification.
Crimes (Sentencing) Act 2005 (ACT), ss 35-37
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4F, 19(1), 26, 33
Road Transport (Driver Licensing) Regulation 2000 (ACT), Div 3.7
Barac v Thexton [2008] ACTSC 137
Boeyen (1990) 50 A Crim R 482
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Ellis (1993) 68 A Crim R 449
Goundar v Goddard (2010) 240 FLR 176
House v The King (1936) 55 CLR 499
Morris v East (1988) 83 ACTR 1
R v North [1971] RTR 366
R v Thomson (2000) 49 NSWLR 383
Scott v Wynants (2009) 4 ACTLR 13
Sheather v Bishop [2012] ACTSC 77
Shires v Edwards [2011] ACTSC 132
The Queen v TW (2011) 6 ACTLR 18
Wong v The Queen (2001) 207 CLR 584
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 62 of 2011
Judge: Refshauge ACJ
Supreme Court of the ACT
Date: 5 November 2012
IN THE SUPREME COURT OF THE )
) No. SCA 62 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
IAN ROSS
Appellant
v
LARA WILLIAMS
Respondent
ORDER
Judge: Refshauge ACJ
Date: 14 February 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld in part.
The contribution in the fine, order for costs and criminal injuries compensation levy be confirmed.
The order giving time to pay the fine, costs and criminal injuries compensation levy be set aside.
The disqualification of Mr Ross from holding or obtaining a driver’s licence is set aside.
In lieu, the fine be paid on or before 14 August 2012.
The automatic disqualification be reduced to seven months from the date of conviction, subject to the interruption as a result of s 216 of the Magistrates Court Act 1930 (ACT).
AND THE COURT DECLARES THAT:
To take into account the days of the disqualification prior to the filing of the notice of appeal, the disqualification will end on 5 September 2012.
Drink-driving has become a constant problem for the community with the effect it has in contributing to road traffic accidents and therefore to problems for those whose lives, well-being and property are affected.
One of the means of responding to the problem is to remove from drivers who do not obey the prohibition against drink-driving the privilege of holding or obtaining a driver licence. This can have serious consequences in itself, given the economic dependency that many have on such a licence. See Boeyen (1990) 50 A Crim R 482 at 485. This can raise difficult sentencing issues which are not always easy to resolve.
On 14 February 2012, I upheld in part the appeal of the appellant, Ian Geoffrey Ross, from a decision of the Magistrates Court. I said I would deliver my reasons later. These are those reasons.
On 12 April 2011, Mr Ross was drinking with a friend and then drove home. On the way, he came upon a road block which was a result of a power pole obstructing the road. He tried to drive over the pole, drawing the attention of the police to his driving.
He was subjected to breath analysis and found to have 0.124 grams of alcohol in 210 litres of exhaled breath. As a result, he was charged with an offence under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act) as a Level 3 offence.
He appeared in the Magistrates Court on 8 June 2011 and pleaded guilty. The learned Chief Magistrate imposed a fine of $880 with court costs of $65 and Criminal Injuries Compensation of $50 with six months to pay and disqualified him from obtaining or holding a driver licence.
He has now appealed against the sentence.
JURISDICTION
This Court has power under Pt 3.10 of the Magistrates Court Act 1930 (ACT) to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles to be applied. I apply them in this case.
The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
THE PROCEEDINGS
Mr Ross pleaded guilty at his first appearance in the Magistrates Court. He represented himself.
He was initially charged as a first offender. From 1 December 2010, however, the definition of “repeat offender” in s 4F of the Alcohol and Drugs Act had been amended to redefine its meaning so that “repeat offender” would now apply to a person who has been convicted of an offence of drink-driving at any earlier time, rather than, as had until then applied, only those who had been convicted of such an offence within the previous five years.
Mr Ross had been convicted of such an offence in 1984, committed in 1983, nearly 28 years earlier.
The maximum penalties for a repeat offender convicted of a Level 3 offence, under s 26 of the Alcohol and Drugs Act, are 10 penalty units, that is a fine of $1,100, or imprisonment for six months or both. Under s 33 of the Alcohol and Drugs Act, conviction results in an automatic disqualification of a repeat offender convicted of a Level 3 offence of three years disqualification from holding or obtaining a driver licence or such lesser period as the court may order, but no less than six months.
Mr Ross made a plea in mitigation. He explained that he had been drinking with a friend; he was drinking light beer but his friend was drinking full-strength beer. He said that, after a few drinks, his friend could not distinguish between the two and he was sure that his friend had, when his turn to shout came round, given him full-strength beer.
He said he felt a little more intoxicated than normal, but felt safe to drive. He must, however, even if drinking light beer all the time, have been likely to have exceeded the prescribed concentration of alcohol given the reading he actually returned.
He also said he had been suffering depression. He had some personal challenges: his father was suffering from terminal cancer and he had separated from his wife of twenty-four years. He was seeing a psychologist for counselling. He found that his medication did not always work, so sometimes he medicated with light beer.
He submitted that he was a responsible person. His only offence had been the 1984 conviction. He had been a driver for 33 years. He is a bus driver and, accordingly, is likely to have driven more than most other members of the community. His record was, in that sense, a good one.
He donates and works for charity, though good character is perhaps of a more limited mitigation in such offences as they are often committed by persons of such good character. It cannot, however, be irrelevant. It was, however, not merely an absence of convictions, but what has been called positive good character as I explained in Goundar v Goddard (2010) 240 FLR 176 at 184; [45]–[47].
He tendered a character reference by two prominent businessmen which confirmed that he was regarded as “an exceptional worker, careful and diligent, as well as honest and trustworthy.” They described him as “a man of honour”.
He submitted that his earlier offence had been when he “was fairly young and stupid”. He would have been about 25 at the time. He also noted that the inevitable loss of licence would put his job in jeopardy as he had used up most of his leave and his employer was reticent about permitting employees to take leave without pay. He may be able to continue cleaning buses but there was a doubt about that.
He tendered a statement from his employer which stated that he needed a driver licence to carry out his duties and said “[t]here is [sic] no other duties available for Mr Ross”. The risk to his employment was, thus, not merely self-report.
The prosecution made no submissions on sentence and did not controvert any of the matters raised by Mr Ross.
The learned Chief Magistrate then proceeded to sentence. Her Honour said:
Mr Ross, I’ve taken into account what you’ve said about the circumstances in which this offence was committed, and I’ve also taken into account your prior history. There is, of course, a previous conviction in relation to an offence of a similar type back in 1984. Given that that was such a lengthy period ago I have afforded a significant discount for the good record, if you like, ... on which would otherwise have been applied. And I have also afforded a discount of 25 percent in light of your early guilty plea. The effect of that is that I have determined to deal with the matter in this way: you are convicted, you are disqualified for 18 months rather than the three years which would otherwise have applied. That reflects the 25 percent discount for your guilty plea and a further 25 percent discount for your good record in the intervening period.
You will be fined in relation to this matter in the sum of $880 and required to pay court costs of $65 and a criminal injuries compensation fund contribution of $50, which totals $995.00
THE APPEAL
There is one ground of appeal, namely that the sentence imposed was manifestly excessive.
That ground has been the subject of consideration by the Court of Appeal most recently in The Queen v TW (2011) 6 ACTLR 18 at 27–8; [60]–[61] where I said, in a passage with which Penfold and Lander JJ agreed:
In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]–[35]):
32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):
46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen [(2000) 202 CLR 321], must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
See also R v Thorn [2010] ACTCA 10 (at [33]).
33.As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
35.The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.
This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.
It is true that it is not always possible to provide an insight into what Hunt CJ at CL described in Ellis (1993) 68 A Crim R 449 at 460 as “the collective wisdom of other sentencing judges”. In such offences as this, some efforts have been made to assist the Court, though not always with particular success. See, for example, Scott v Wynants (2009) 4 ACTLR 13 at 16; [14], though the work there provided to the Court took quite some effort. See also Morris v East (1988) 83 ACTR 1 at 6. On the other hand, I note that in Morris v East, Miles CJ said (at 10) of a drink driving offence:
The Supreme Court is capable of knowing where the limits of a sound discretionary judgment lie where a person is sentenced for this type of offence.
THE SUBMISSIONS ON APPEAL
The appellant, represented by Mr J Sabharwal, pointed to the significant mitigatory features that needed to be taken into account: the belief that Mr Ross was drinking light beer, his very early plea of guilty, his long record without any offending, that his only offence was 28 years ago, the need of his licence for employment, his remorse, his positive good character and the personal distress that his family situation had obviously caused him. In particular, Mr Sabharwal noted that, contrary to what I had said in Shires v Edwards [2011] ACTSC 132 at [82], her Honour did not seem to have taken into account the employment consequences of the loss of a driver licence to Mr Ross.
He also challenged what her Honour said when imposing sentence, namely:
It’s very unfortunate in your personal circumstances the significant impact I realise that this will have. This was the very intent of the legislature in tightening up the law in respect of these matters.
Mr Sabharwal submitted that it was unclear what intent her Honour was ascribing to the legislature. This, perhaps, referred back to something her Honour said in responding to earlier submissions by Mr Ross, when he acknowledged that, now as a “repeat offender”, he could not make application for a restricted licence. Her Honour said:
This is an issue which came up earlier to today, Mr Ross, the fact that the legislature has taken away an application, or a right for a person to apply in the circumstances in which you find yourself. If I was to then take an approach well because it’s been taken with one hand I should give it back with the other, I am effectively undermining the effect of the legislation.
It may be that what her Honour was saying was that any allowance or reduction in the setting of a disqualification period because of the effect on an offender’s employment would undermine the legislative amendment that had extended beyond the former five years the period for which a prior offence would render an offender a “repeat offender” and thus ineligible for a restricted licence, that is, one issued under Div 3.7 of the Road Transport (Driver Licensing) Regulation 2000 (ACT) and which would allow the offender to drive in the course of his or her employment. It is entirely unclear.
The respondent (erroneously described in the written submissions filed on her behalf as the Crown) referred to general principles and submitted that it was necessary for an appellant asserting that a sentence was manifestly excessive not merely to assert it but to address the basis of the assertion and identify the relevant matters that show how the Court should draw that conclusion.
Here, it was submitted, the sentence was within a proper sentencing range and another disposition was not required on appeal. A non-conviction order would not be appropriate.
I raised with counsel two concerns, namely, that her Honour seemed to approach the disqualification period as if it were a maximum penalty and that her mathematical approach might be contrary to principle. Mr Sabharwal adopted these concerns and submitted that they led to the manifest excess in the calculation of the disqualification period.
CONSIDERATION
It is perhaps unsurprising in this day and age that the period for which a person is disqualified from holding or obtaining a driver licence is of such concern that a growing number of appeals to this Court challenge that element of the sentence and that element only. See, for example, Sheather v Bishop [2012] ACTSC 77 at [37]. The UK courts have recognised this: in R v North [1971] RTR 366 at 368, the Court of Appeal referred to the need to recognise that “driving is almost essential for so many people”. It is often observed that this is particularly so in Canberra.
In any event, those whose livelihoods depend on their capacity to drive a vehicle will be penalised more by the loss of a licence than those who are not dependent in this way. That perhaps behoves those who are so dependent to take greater care to protect their licence, but the penalty is designed to protect the community and ensure obedience to a regulation directed at public safety rather than punishing moral lapses. The evil to which the offence is directed at eliminating is the same whether the drink-driver should have taken more care or not. Indeed, it might be said that those who are not so dependent on their licence need stronger deterrence than those who will feel the deprivation keenly and financially quite apart from the court imposed penalty.
I explained in Barac v Thexton [2008] ACTSC 137, after an examination of the authorities, that disqualification of a person from holding or obtaining a driver licence is, therefore, an important tool in a court’s armoury when exercising its function to protect the community and ensure obedience to the prohibition from drink-driving, but that it was proper to take into account the employment of the offender and his or her economic dependence on a licence when deciding the period for which a disqualification should be made. Certainly, the penal effect of that disqualification will be greater on those whose employment depends on holding a licence and fairness and equity, recognised by the courts as relevant, requires an appropriate moderation.
Of course, as a person re-offends, the moderation that can be offered reduces and repeat offenders may require more severe penalties, including longer periods of disqualification, to ensure that compliance with the law is achieved, if it can be.
In this case, there is nothing in the Appeal Book to show that her Honour took into account the reliance of Mr Ross on his licence. I do not accept that the extension of the period for the purposes of determining whether a person is a repeat offender or not meant that this principle, recognised widely in Australia and elsewhere, was abrogated. Certainly, the person could not obtain a restricted licence. Earlier offences could also be considered, but that was always permitted, even though it did not render the offender liable to greater maximum penalties. Now it does that and this needs to be taken into account. Nevertheless, employment remains relevant to the period of suspension. Her Honour can be regarded as not having taken it into account, rending the penalty manifestly excessive. It is, also, an error in the failure to have regard to a relevant consideration: House v The King (1936) 55 CLR 499 at 505.
Her Honour seemed to approach the period of disqualification in an erroneous way. In the first place, her Honour approached it as if it were a maximum penalty in the same way as the fine and imprisonment for the offence are. It is not, as Higgins CJ noted in Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]; it is a default period – “the usual period unless there is good reason to vary it”. Indeed, in certain circumstances, the Court can impose a greater period. Perhaps, her Honour was merely making deductions from the default period, rather like discounts for pleas of guilty.
More importantly, however, her Honour did apply a mathematical approach to determining how she would calculate the proper period of disqualification. That is inconsistent with principle. In Wong v The Queen (2001) 207 CLR 584 at 611; [74], Gaudron, Gummow and Hayne JJ said:
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. (footnote omitted)
There has been a tendency to apply percentage discounts for pleas of guilty in this jurisdiction. That is clearly influenced by the NSW sentencing regime which requires it: R v Thomson (2000) 49 NSWLR 383 at 419; [160]. The discount when a reduction on a term of imprisonment is given for a plea is required to be stated in this Territory under ss 35-37 of the Crimes (Sentencing) Act 2005 (ACT). This did not apply here. In any event, mathematical reference to matters other than the plea of guilty is not supported by statute and is contrary to principle.
Given the clear direction of the High Court that the approach to sentencing should be to apply an instinctive synthesis (Wong v The Queen at 611; [75]), the application of mathematical approaches is not only inconsistent with this but, as here, risks omitting factors that need also to be taken into account.
In my view, the period of disqualification was manifestly excessive, disclosing that there must have been an error that her Honour made in failing to consider the economic effect of licence disqualification on Mr Ross. Given the obvious remorse shown by Mr Ross, the dependence of his livelihood on his licence, his commitment not to re-offend, the long period of conviction-free driving, particularly in the context that he would have been driving much more than others, and his good character, a much shorter period was appropriate to protect the community by keeping him off the roads and appropriately punishing him for the offence he committed.
I made orders reducing the period of disqualification accordingly.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.
Associate:
Date: 5 November 2012
Counsel for the respondent: Mr D Sahu-Khan
Solicitor for the respondent: ACT Director of Public Prosecutions
Counsel for the appellant: Mr J Sabharwal
Solicitor for the appellant: Rachel Bird & Company
Date of hearing: 14 February 2012
Date of judgment: 14 February 2012
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