Jodie Robertson v Shane Alain Leferve
[2010] ACTSC 162
•2 December 2010
JODIE ROBERTSON v SHANE ALAIN LEFERVE
[2010] ACTSC 162 (2 December 2010)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 21 of 2010
Judge: Mathews AJ
Supreme Court of the ACT
Date: 2 December 2010
IN THE SUPREME COURT OF THE )
) No. SCA 21 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JODIE ROBERTSON
Appellant
AND:SHANE ALAIN LEFERVE
Respondent
ORDER
Judge: Mathews AJ
Date: 2 December 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The sentence imposed by Chief Magistrate Burns on 7 April 2010 be overturned.
In lieu thereof, a sentence of three months imprisonment be imposed, to be fully suspended upon Ms Robertson entering into a Good Behaviour Order for a period of 12 months from 2 December 2010 with the following conditions:
(a) That she accept the supervision of the Chief Executive of ACT Corrective Services or his or her delegate and obey all reasonable directions; and
(b) That she participate in any programs or counselling as directed by the Chief Executive, with particular reference to separated parents and anger management.
Ms Robertson be disqualified from holding or obtaining a driving licence for a period of six months from 2 December 2010.
This is an appeal against a sentence imposed by the magistrate in relation to a charge of driving in a way dangerous. The offence to which the appellant pleaded guilty took place in January 2010.
Without going into the details of the offence, it involved the appellant driving her vehicle directly into a telegraph pole beside the road. She had as her passenger, the gentleman who had previously been her partner, and was the father of three of her four children. He had had custody of the three children for several days before this offence and she had been in a state of considerable anxiety as to whether he would be prepared to return them to her.
In fact, he made financial demands upon her as a condition of returning the children to her. She was driving him to Centrelink, in an apparent attempt to meet his demands, when she became upset and overwrought at the situation and deliberately drove the car off the road. It was accepted by the prosecution that she did not deliberately aim at the pole. However, the effect was that the car struck the pole, fortunately causing no injury to either the appellant or her passenger. He was so terrorised that he jumped out of the moving car shortly afterwards.
A recitation of the facts indicate that this was a serious instance of driving in a dangerous way. As Mr Whybrow points out, it was over a very short period of time, the appellant was in an overwrought state at the time and was not properly advertent to what she was doing or to the risks that she was taking. She has pleaded guilty to the charge and all these matters are appropriate to be taken into account.
The magistrate sentenced her, in relation to this charge, to three months’ imprisonment, to be served by way of periodic detention. He disqualified her from holding or obtaining a licence for a period of nine months.
As Mr Lawton, for the respondent, concedes, the magistrate was in error in imposing a sentence of periodic detention. He had before him a pre-sentence report which clearly indicated that the appellant had not signed an undertaking to comply with her periodic detention obligations. Pursuant to section 77(1)(d) of the Crimes (Sentencing) Act2005 (ACT), the court is not to set a periodic detention period unless satisfied that such an undertaking has been signed. Accordingly, it has been agreed by both counsel that an error having been made in the sentencing process, the appellant comes to be re-sentenced today.
Mr Whybrow has submitted that the disqualification of nine months was excessive. However, the more important issues relate to the principal punishment. A recent pre-sentence report indicates that the appellant is not suitable for periodic detention, and the writer of the report has given evidence today indicating that she is also unsuitable to serve a sentence by way of community service. Both of these are essentially because the appellant has the primary care of her four young children.
She has been struggling to maintain normality in her life, despite a large number of hardships and difficulties in her background, which it is unnecessary to describe for present purposes. She has established a florist business, which is very much to her credit, but this provides little by way of profit for her. Nevertheless it provides some stability in her life, and I think that everybody agrees that it is important for her to be able to continue with that business. Were she to be taken out of the community, either for periodic detention or community service, she would have to neglect her florist’s business. Much more importantly, however, is the fact that there would, on many occasions, be no one left to care for her children. The hardship to people other than the offender is an appropriate matter to be taken into account on sentence.
In all the circumstances, the only available alternatives are to impose a full time sentence of imprisonment, to be served completely, or to suspend that sentence. All of the matters that I have already referred to favour the latter course, namely the suspension of the sentence.
Mr Lawton has very fairly conceded that it is inappropriate to extend the term of any sentence simply because it is to be suspended. Accordingly, the appropriate term of the suspended sentence will be three months. However, it can be tied to a 12 month Good Behaviour Order, which is what I propose to do. The magistrate, as I have indicated, ordered a disqualification from holding a licence for a period of nine months. The statutory norm for this offence is a three months’ period of disqualification. In the circumstances, particularly given the hardship that the appellant will face during a period of disqualification, I propose to reduce that period to six months.
The orders that I make are as follows; In relation to the charge of driving while disqualified, I allow the appeal and quash the sentence imposed by the magistrate. In lieu thereof, I sentence the appellant to imprisonment for a period of three months, to be suspended immediately upon her entering into a good behaviour order for a period of 12 months. It is a condition of that order, that she accept the supervision of ACT Corrective Services and obey all reasonable directions of the Chief Executive of that service, or his or her delegate, and that she participate in any programs or counselling as directed by the service, with particular reference to separated parents and anger management. I order that the appellant be disqualified from holding or obtaining a
licence for a period of six months from today.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Mathews.
Associate:
Date: 20 December 2010
Counsel for the Appellant: Mr S Whybrow
Solicitor for the Appellant: Howes Kaye Halpin, Solicitors
Counsel for the Respondent: Mr J Lawton
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 2 December 2010
Date of judgment: 2 December 2010
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