Matthew Robert Peadon v Luke John Calgaro
[2011] ACTSC 80
•16 May 2011
MATTHEW ROBERT PEADON v LUKE JOHN CALGARO [2011] ACTSC 80 (16 May 2011)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 3 of 2011
Judge: Nield A/J
Supreme Court of the ACT
Date: 16 May 2011
IN THE SUPREME COURT OF THE )
) No. SCA 3 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MATTHEW ROBERT PEADON
Appellant
AND: LUKE JOHN CALGARO
Respondent
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
ORDER
Judge: Nield A/J
Date: 16 May 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed.
The conviction is confirmed.
The sentence is set aside. The appellant is resentenced to a good behaviour order under s 13 (2) of the Crimes (Sentencing) Act 2005 to be of good behaviour for two years from today, which order is to include a community service condition under s 13 (3) (b) of that Act that he perform 150 hours community service work within 12 months from today
As to the appeal of Matthew Robert Peadon
On 23 July 2010 the appellant drove a motor vehicle whilst there was present in his blood alcohol 0.157 grams of alcohol per 100 millilitres of blood. The appellant had a restricted driver’s licence. He could not drive a motor vehicle with alcohol in his blood greater than 0.02 grams of alcohol per 100 millilitres of blood. Consequently, the quantity of alcohol in his blood was nearly eight times that with which he could lawfully drive a motor vehicle.
The maximum penalty for the offence that he committed was imprisonment for a maximum of 12 months, or a fine of a maximum of $2,200.00, with an automatic or default disqualification from holding or obtaining a driver’s licence for five years.
On 9 November 2010 the appellant appeared before a Magistrate in the ACT Magistrates Court and he pleaded guilty to the offence. The sentencing proceedings were stood over for a preparation of a pre-sentence report.
On 12 January 2011 the appellant appeared again before a Magistrate and he was sentenced. The Magistrate’s sentence was imprisonment for two months, to be served on a fulltime basis, with disqualification from holding or obtaining a driver’s licence for the automatic or default period of five years.
On 13 January 2011 the appellant lodged his Notice of Appeal. The basis of his appeal was that the magistrate’s sentence was, inter alia, manifestly excessive. There were other grounds of appeal relied upon.
On 14 January 2011 the appellant was released from custody, having served two days in prison.
Today, I have heard the appellant’s appeal.
My reading of the Magistrate’s reasons for sentence reveals that the Magistrate considered, albeit not in this order:
1.the nature of the appellant’s offence,
2.the prescribed penalty for the appellant’s offence,
3.the seriousness of the appellant’s offence, taking into account the reading of 0.157, the fact that it was almost eight times the allowed concentration, and the fact that the appellant was a repeat offender,
4.the offender’s relative youth, although I tend to think myself that he is not relatively young,
5.the appellant’s past offending of three previous drink-drive offences,
6.the appellant’s guilty plea, entered, as it was, at the first appropriate opportunity,
7.the appellant’s rehabilitative steps, referred to in the pre-sentence report, and his undertaking of a sober driving course,
8.the need for deterrence,
9.the purpose of sentencing outlined in s 7 of the Crimes (Sentencing) Act 2005,
10.whether imprisonment was the only appropriate penalty, and
11.that a community service order or periodic detention were inappropriate, without saying why one or other was not appropriate, or both were not appropriate.
The issue debated before me was whether or not, objectively speaking, the sentence, being both imprisonment and disqualification, was manifestly excessive. There are cases in which a sentence of imprisonment of the offence would be appropriate. The question is whether or not, viewed objectively, the circumstances of this case required a sentence of imprisonment to be served on a fulltime basis.
Notwithstanding the high reading and the fact that it was almost eight times that allowed by the appellant’s licence, and notwithstanding that he had three previous drink-driving offences, it seems to me, with respect to the Magistrate, that the failure to say why it was that a good behaviour order with a community service component or periodic detention, if imprisonment was to be imposed, were inappropriate.
Frankly, it seems to me that, having regard to the principles of sentencing generally, that a sentence of imprisonment, being the sentence of last resort, requires that an intermediate sentence be considered and, if considered inappropriate, then explained why such a sentence is inappropriate.
I consider that a sentence of a good behaviour order with a community service component is an appropriate sentence. Such a sentence will deprive the appellant of his leisure time but nonetheless allow him to continue his employment, to provide for himself and to meet such demands that his child has of him.
In these circumstances, I allow the appeal.
I confirm the appellant’s conviction for the offence.
I set aside the sentence of imprisonment and the disqualification period of five years.
In lieu thereof, I order that the appellant enter into a good behaviour order under s 13 (2) of the Crimes (Sentencing) Act 2005 to be of good behaviour for two years from today, which order is to include a community service condition under s 13 (3) (b) of that Act that he perform 150 hours community service work within 12 months from today.
I disqualify him from holding or obtaining any licence under the relevant legislation for a period of three years from today.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 18 May 2011
Counsel for the appellant: Mr W Redpath
Solicitor for the appellant: Nicholl and Co Lawyers
Counsel for the respondent: Ms S Tasneem
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 16 May 2011
Date of judgment: 16 May 2011
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