McMahon v O'Neill - [2015] NTSC 58

McMahon v O’Neill [2015] NTSC 58
PARTIES:McMAHON Brian Anthony
v

O’NEILL Wayne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA/AS 11 of 2015 (21509943)
DELIVERED:  10 September 2015
HEARING DATES:  31 August 2015
JUDGMENT OF:  HILEY J
APPEAL FROM:  Mr Birch SM
CATCHWORDS:

CRIMINAL LAW – appeal against sentence – Justices appeal – road traffic offences and offence under Alcohol Protection Orders Act2013 (NT) – drive without due car – driving while not holding a licence – driving not associated with exceptional circumstances – term of imprisonment outside standard range – sentence manifestly excessive – appeal allowed.
Alcohol Protection Orders Act 2013 (NT), s 23(1); Sentencing Act1995 (NT), s 5; Traffic Act 1987 (NT), ss 24(1)(d); 24(2); 31(1); 32(1)(a), 52; Traffic Regulations 1999 (NT), reg 18.
Club v Westphal [2010] NTSC 66; Lalara v Malogorski [2012] NTSC 53; Marshall v Court [2013] NTSC 75; Rontji v Westphal [2010] NTSC 67; Veen v The Queen (No 2) (1988) 164 CLR 465, applied.
Newton v Millar [2003] NTSC 88, distinguished.
Dodd v Byrne [2014] NTSC 31; Hoare v The Queen (1989) 167 CLR 348; Long v Westphal [2010] NTSC 55; Olsen v Sims [2010] NTCA 8, referred to.
REPRESENTATION:
Counsel:
Appellant:R Goldflam
Respondent:  G Dooley
Solicitors:
Appellant:NT Legal Aid Commission
Respondent:  DPP
Judgment category classification:    B
Judgment ID Number:  Hil1509
Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McMahon v O’Neill [2015] NTSC 58

No. JA/AS 11 of 2015 (21509943)
BETWEEN:

BRIAN ANTHONY McMAHON

Appellant

AND:

WAYNE O’NEILL

Respondent

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 10 September 2015)
Introduction

On 28 May 2015 the appellant pleaded guilty to and was convicted of four offences, all committed on 4 March 2015. They were:
1.driving without due care, contrary to regulation 18 of the Traffic Regulations 1999 (NT) (count 2);
2.driving whilst not been the holder of a driver’s licence, contrary to s 32(1)(a) of the Traffic Act1987 (NT) (count 4);
3.driving with an alcohol content of 0.038 grams of alcohol per 210 litres of exhaled breath whilst not being the holder of a licence, contrary to s 24(1)(d) of the Traffic Act 1987 (NT) (count 5); and
4.intentionally drinking wine, resulting in contravention of an alcohol protection order, contrary to s 23(1) of the Alcohol Protection Orders Act2013 (NT) - (count 6).
By committing those offences he was also in breach of conditions imposed by the Court of Summary Jurisdiction on 23 October 2014 when it sentenced him to 14 days imprisonment for two other offences and suspended those sentences on condition that he be of good behaviour for six months. His Honour restored the two sentences of 14 days imprisonment and ordered them to be served concurrently.
For the offending on 4 March 2015 his Honour imposed an aggregate sentence of 4 months imprisonment, ordered that it be suspended after 14 days, being the same 14 days as that restored in relation to the previous offending, and fixed an operational period of 12 months. His Honour also disqualified the appellant from driving for a period of 12 months, and ordered him to pay restitution in the sum of $500 at the rate of $50 per fortnight. He was also convicted for a breach of bail and sentenced to 4 days imprisonment also to commence that day.
The appellant has appealed against the sentence on two grounds:
1.that the sentence was manifestly excessive (ground 1); and
2.that “the learned Magistrate failed to consider adequately that the principle of imprisonment should be a punishment of last resort” (ground 2).
Although the notice of appeal did not complain about the disqualification, order for restitution or length of the operational period, counsel for the appellant submitted that they were all additional factors which rendered the sentence of four months imprisonment manifestly excessive. In relation to ground 2, counsel acknowledged that although his Honour did not state that he had taken into account the principle regarding imprisonment being a punishment of last resort, there was no requirement that this be done expressly. Irrespective of that concession, there is no reason to doubt that his Honour would have taken this well known principle into account. Counsel’s contentions concerning ground 2 were effectively subsumed within those made in relation to ground 1.
Relevant background
The offending
On the afternoon of Wednesday 4 March 2015, the appellant and his friend John Jacobson had been at the Trucking Yard Camp, Alice Springs. The appellant had travelled to that location as a passenger in Jacobson’s white Mitsubishi Magna motor car. While there, the appellant consumed a quantity of wine, a handful of valium tablets and 500 milligrams of Seroquel, an anti-psychotic medication. His lawyer told the court that the appellant never drives but that on this occasion, his friend Jacobsen had drunk a lot of alcohol and asked the appellant to take him to the shop to get a chicken because he was hungry. Jacobsen gave the appellant his car keys and the appellant drove the car to Coles.
The appellant entered the roadway leading to the Coles car park travelling in the wrong direction on a one-way lane. He was stopped and spoken to by police who informed him that it was a one-way lane and requested him to turn the vehicle around. He drove forward three car lengths, then stopped and reversed the vehicle without proper checks. In the process of doing that he reversed into a parked silver Holden Captiva owned by Sarah Schneider, and caused considerable damage to the panelling and paint on the driver’s side rear door. He then revved the motor trying to move the vehicle but had not engaged the transmission into drive. He then engaged the transmission and lurched forward, moving across the lanes, and drove into the front of a red Lancer Mitsubishi sedan, owned by Britney McFarlane. This caused significant damage to the front bumper and driver’s front quarter panel of that vehicle.
Police attended. The appellant made spontaneous admissions to having consumed some wine and taking a handful of valium. He was arrested and taken to Alice Springs watch house where a breath analysis showed a reading of 0.038 percent. It was daylight and fine at the time of the offending, the road was sealed, traffic flow was heavy, dozens of pedestrians were in the area and the car park at the Coles centre was a public place open to and used by the public. When asked why he was driving the vehicle the appellant said that he was hungry and wanted to get food.
Ms Schneider’s vehicle was insured and she sought restitution for the excess of $500. An initial assessment of the cost of repairing Ms McFarlane’s car was an amount exceeding $1,500 and it was thought that the car might need to be written off. However no further evidence was provided in relation to her car.
Antecedents
The appellant has a lengthy criminal history which includes convictions in every State and Territory apart from Victoria. Most of them are for relatively minor offences such as public nuisance, receiving stolen property, consuming liquor on public land, offensive behaviour, assault and possession of cannabis.
His most serious offending occurred in late 2001 when he assaulted a member of the police force and went armed in public. He was sentenced to a total of 11 months imprisonment for those two offences. In November 2005 he was sentenced to two months imprisonment for common assault. In May 2008 he was sentenced to three months imprisonment for resisting a Commonwealth public official and committing a public nuisance but he was released forthwith upon entering into a good behaviour bond. Since then he has been sentenced to two months imprisonment suspended after 14 days (in January 2010), and 14 days imprisonment for several other offences. Most of those sentences were fully suspended. Otherwise all of his offending since November 2001, and most of his offending prior to then, resulted in small fines, bonds or convictions without penalty.
In June 2014 he committed his first breach of an alcohol protection order, but no conviction was entered. On 23 October 2014 he was convicted of seven offences. Three of those offences, consumption of liquor in a public restricted area, possessing a drug related thing and disorderly behaviour in a police station were committed on 1 March 2014 and respectively resulted in a fine, victims levy and 14 days imprisonment fully suspended with an operational period of six months. He was also convicted and fined $100 and ordered to pay the victims levy for breaching an alcohol protection order on 14 August 2014. The other three offences, breaching an alcohol protection order, disorderly behaviour in a public place and disorderly behaviour in a police station were committed on 21 October 2014 and respectively resulted in a fine, victims levy and 14 days imprisonment also fully suspended with an operational period of six months. On 7 November 2014 he was convicted and fined $100 (plus victims levy) for another breach of an alcohol protection order committed on 16 July 2014.
This clearly indicates ongoing problems with alcohol and associated disorderly behaviour.
Importantly, however, his only ever driving offence occurred in July 1991, in Queensland. He was fined $700 and disqualified from holding a licence for nine months.
Sentencing factors
Maximum penalties
The offence subject of count 4, driving whilst not being the holder of a licence, carries the highest maximum penalty of the four counts, namely 12 months imprisonment.[1] This is the same maximum penalty as applies to numerous other offences in the Traffic Act, including to the offence of driving whilst disqualified.[2]
The maximum penalty for count 2, drive without due care, is six months imprisonment. The maximum penalty for each of counts 5[3] and 6[4] is three months imprisonment.
Mitigating factors
The plea was early and the appellant cooperated with police. The appellant expressed willingness to pay restitution despite the fact that his only income was $800 per fortnight from his disability pension, from which he pays $400 to The Salvation Army for board.
A reference from Mr Brad Hartam of The Salvation Army indicated that the appellant successfully completed an alcohol and other drugs rehabilitation program in March 2014, willingly attended all medical mental health and counselling appointments, and was a positive influence for other men in the program. Since January 2015 he has participated in group therapy sessions. He resides at the Salvation Army Men’s Hostel and “shows a willingness to address his substance abuse issues while dealing with his mental health and being homeless.” He has expressed remorse for his actions. The Salvation Army remains willing to support him.
His Honour also found that for a long time the appellant has had a lot of trouble with mental illness, associated with alcohol and drug abuse to some extent, and a history of brain injury. The appellant’s lawyer told his Honour that he was admitted to a psychiatric ward some 20 years ago and diagnosed with a mental illness, and that he had recently been under psychiatric treatment following an attempted suicide and other mental issues. He suffered an acquired brain injury in 2001 as a victim of an assault. He has undergone numerous attempts at rehabilitation for his alcohol problems including at CAAAPU in Alice Springs. Counsel submitted that sending him to jail would perhaps make it a lot more burdensome for him than for other offenders who do not have the kind of psychiatric history that he has.
Counsel informed his Honour that he plans to go back to Katherine where he has friends and support and the prospect of taking up a job there pushing trolleys at the local supermarket. He can live at the Salvation Army hostel there, where he had previously lived, and be provided with support for his medical condition at the hospital including from the consultant psychiatrist who has already been dealing with him.
As I have noted, despite his lengthy criminal record, the appellant had not been convicted of a driving offence since 1991. Counsel informed the court that he does not hold a driving licence because he cannot read or write. One might assume that he has not driven a motor vehicle since 1991 and thus has not committed offences such as those the subject of counts 2, 4 and 5 since then.
Precedents concerning driving offences
Counsel for the appellant referred to a number of other decisions of this Court which relate to sentences for similar driving offences. Although each of those decisions only relate to one or other of such driving offences, and the present matter concerns three driving offences (and the offence regarding the breach of the alcohol protection order), counsel contended that the imposition of an aggregate sentence for all four counts in the present matter had the potential of masking error.
In Club v Westphal[5] this Court upheld an appeal against a sentence of 14 days imprisonment, fully suspended, for driving unlicensed. The appellant in that matter had five prior convictions for driving unlicensed. Although the respondent had conceded that the sentence was manifestly excessive in all the circumstances, Blokland J indicated why she considered that a sentence of imprisonment was manifestly excessive. This was so even though the appellant in that case had also been driving with a prescribed level of alcohol (0.130 percent) in his blood, a matter for which he was also dealt with at first instance.
Her Honour was provided with a comprehensive schedule of penalties that had been imposed for the offence of driving unlicensed in Alice Springs for the first seven months of 2010, and observed that in all instances the penalty imposed was a fine, save for when no penalty was imposed.[6] Her Honour also referred to the decision in Long v Westphal[7] where Martin CJ found that the imposition of a disqualification period was outside the range of penalties commonly imposed for the offence of driving unlicensed. Her Honour said, at [15]:
The imposition of a sentence of imprisonment being a more significant penalty than a disqualification must be seen in a similar light.
At [16] her Honour acknowledged that there was an aggravating feature in the appellant’s conduct in that he was also driving under the influence of alcohol at the relevant time. She said:
The appellant cannot be punished for the drink driving again in the sentence for the drive unlicensed, however when the drive unlicensed is coupled with other poor driving including alcohol, it does elevate the objective seriousness to a higher level. That is not a reason in this case that could justify an increase in the penalty to imprisonment and was not in my view within the range expected.
Her Honour quashed the sentence of imprisonment and imposed instead a fine of $400 and ordered a victims levy of $40.
On the same day Blokland J allowed an appeal against a sentence of 21 days imprisonment for driving unlicensed in Rontji v Westphal[8] for similar reasons, notwithstanding that the appellant in that matter had nine previous convictions for driving unlicensed. After referring to the same schedule of penalties as she had referred to in Club v Westphal her Honour said, at [8]:
In this matter it is difficult to see how departing from the established sentencing standard could be justified. There was no other errant driving noted and no alcohol was involved. The previous drive unlicensed conviction was dealt with in 2008 for an offence committed in 2007. Although concerning and somewhat frustrating, the offending does not have the features of a contumelious breach of the law. Despite the previous convictions an assessment must be made of the objective seriousness of the offending.[9] In my respectful view the particular offending did not justify a term of imprisonment and is plainly excessive when viewed in the light of the usual sentencing range and recently considered decisions.[10]
Her Honour quashed the sentence of imprisonment and imposed a fine of $500 which she considered to be “in the upper range … for offenders with a significant number of previous convictions of drive unlicensed.”[11]
I was not provided with any more recent information concerning penalties imposed for driving unlicensed in the Northern Territory. However during the hearing of a Justices Appeal in Marshall v Court[12] the Court was provided with a schedule of a random selection of 98 cases where the Court of Summary Jurisdiction imposed sentences for the offence of driving whilst unlicensed between 19 January 2010 and 27 August 2013 with a view to demonstrating the current range of sentences for that offence. In none of those cases was a sentence of imprisonment imposed. In some cases, the offender had significant prior convictions for the same offence. At [15] Mildren AJ said:
The material establishes that the tariff for this offence is a fine ranging between $100 and $500, with a significantly higher fine if there is an aggregate sentence for other driving offences.
Mildren J then referred to the decision of Blokland J in Rontji v Westphal[13] and quoted the passage at [8] which I have quoted in [27] above. At [17] his Honour said:
Where there is an established sentencing tariff, that is, a normal range of sentences for a particular offence, sentences imposed by different magistrates should fall within the range, unless the circumstances of the offence or of the offender are exceptional.[14]
In that case his Honour found that there were two reasons why the circumstances of the case, so far as the driving unlicensed offence was concerned, were exceptional. First, the appellant was on a suspended sentence for similar offending when the offence was committed. Secondly the appellant’s persistent repeat offending showed a contumelious disregard for the law.[15] In those circumstances his Honour was satisfied that the sentence of 28 days imprisonment for driving whilst unlicensed was appropriate. His Honour said that he was not confident that the appellant had entirely learnt his lesson and that a sentence of imprisonment will act as a personal deterrent and as a deterrent to those who contumeliously disobey the law.[16]
Counsel for the appellant also referred to Lalara v Malogorski[17] for a number of reasons. That was an appeal against sentence of imprisonment imposed for a traffic offence, namely driving a motor vehicle with a medium range blood alcohol content (0.14 percent). Like the appellant in the present matter, the appellant had an extensive criminal record which, apart from a conviction for driving a motor vehicle with a low range blood alcohol content in 2010, did not include similar offending since 1994, some 17 years prior to the current offending.
At [13] Mildren J referred to the well-established principle that imprisonment should be imposed only as a last resort, and said:
Except in very obvious cases, before imposing an actual sentence of imprisonment where other sentencing options might be reasonably available, the sentencer should have then indicated that he or she is contemplating that course, particularly if there is no submission from the prosecution that an actual sentence of imprisonment is required.
Counsel for the appellant acknowledged that the appellant should probably have expected that one or both of his earlier sentences of 14 days imprisonment would be restored and also that his Honour did indirectly indicate an intention to impose a custodial sentence when he requested the court guard to attend after hearing submissions in reply from the police prosecutor. Counsel for the respondent pointed out that even though the police prosecutor did not submit that imprisonment was required, he did engage in what he said was the unusual step of a police prosecutor stressing the need for a sentence that will discourage others from driving without a licence.

Counsel for the appellant also referred to Mildren J’s discussion in Lalara v Malogorski about Mr Lalara’s extensive criminal history, including the gap of 17 years since his conviction for a similar offence of driving with a medium or high range of alcohol, and his Honour’s observation that it was not readily apparent why some other disposition, other than a sentence of imprisonment, was warranted.[18] At [17] – [18] Mildren J said:
[17]. … It is well established that the antecedent criminal history of an offender, whilst it is a factor which may be taken into account in determining the sentence to be imposed, cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence, because to do so would be to impose a fresh penalty for past offences, see Veen v The Queen (No 2)[19].
[18] In my opinion, the learned Magistrate gave far too much weight to the appellant’s previous convictions. Even allowing for the fact that some weight ought to have been attached to them, the objective circumstances of the offending did not warrant an actual term of imprisonment.
I was not provided with any references to sentences that have been imposed in relation to the other three offences, in particular the offence of driving without due care. One can imagine circumstances much worse than those involved in the present matter, for example where far more substantial damage is caused to property or where the driver is adversely affected by alcohol or drugs. Even then, with one exception, such decisions of this Court as I have been able to locate all involved the imposition of relatively low fines.
That exception was a decision in 2003 of Mildren J in Newton v Millar.[20] In that matter the appellant drove a motor vehicle from Woods Street in Darwin to Nightcliff where he veered to the left and collided with another motor vehicle which was parked in the street. A breath analysis returned a positive reading of 0.288 percent alcohol in his blood. He was noted to be unsteady on his feet, smelt strongly of liquor, was slurring his words and was difficult to understand. He was found guilty of two offences: driving with excessive alcohol in his blood, and driving without due care. He had a large number of prior convictions relating to driving, the last of which was about six years prior to the current offending. Counsel for the appellant conceded that sentences of imprisonment were inevitable. His Honour sentenced the appellant to four months and two weeks imprisonment for the offence of driving with excessive alcohol in his blood and one month imprisonment for driving without due care, to be served concurrently with the first sentence.
Proportionality
Counsel for the appellant stressed the sentencing guidelines in s 5 of the Sentencing Act1995 (NT) and in particular the reference to punishing an offender to an extent or in a way that is just in all the circumstances.[21] Counsel referred to the fundamental principle of proportionality and the discussion about that in Veen v The Queen (No 2)[22] particularly at pages 472, 485-6, 490-1 and 496.
Counsel referred to the following passage in the judgment of Southwood J as a member of the Court of Appeal in the Olsen v Sims,[23] at [50]:
Fundamental to the exercise of the sentencing discretion is the principle that any sentence imposed by the Court should never exceed that which can be justified as proportionate to the gravity of the crime in the light of its objective circumstances.[24]
Deterrence
Counsel for the appellant submitted that because the appellant had a mental illness and also the history of brain injury, specific deterrence and general deterrence were of little relevance in the present matter. His frequent and recent offending, much of which is alcohol-related, such as breaching alcohol protection orders and consuming liquor in public restricted areas, demonstrates his inability to learn that he should not commit such offences.
His Honour accepted, as do I, that he was not a particularly good candidate to hold out to the broader community for the purposes of general deterrence, and also that he had been making some attempts to regulate his life and keep out of trouble.
Whilst continuing difficulties with alcohol do need to be dealt with in some way, the imposition of suspended sentences for offences related to and following his use of alcohol does not appear to have deterred him from reoffending of that nature. I do not consider that specific deterrence was very relevant in relation to the other three offences, in light of the fact that he had not committed any driving offence since 1991.
Rehabilitation
The appellant’s prospects of rehabilitation concerning his alcohol and mental issues may well be problematic. Hopefully they can be enhanced as they were previously, following his successful completion of the rehabilitation program in March 2014 which resulted in him being abstinent for 12 months. However there is no reason to suppose that his prospects of rehabilitation in relation to committing driving offences are otherwise than excellent.
Consideration
Counsel for the respondent contended that the drive without due care count was probably the most serious, having regard to the fact that the appellant drove the wrong way up the lane, that damage was caused to the other vehicles and that the incident occurred in an area populated by pedestrians. I agree. Counsel conceded that none of the offences would of themselves warrant imprisonment but contended that for the four offences taken together the imposition of 14 days actual imprisonment was a firm, blunt instrument with a proper purpose behind it.
Counsel for the appellant contended that the offences did not warrant imprisonment, even when as here an aggregate sentence was imposed. Counsel drew my attention to many of the decisions that I have already referred to.
In addition to the primary submission that this offending did not warrant imprisonment at all, counsel for the appellant also stressed the fact that the offending also resulted in other consequences for the appellant, namely the restitution order, licence disqualification and the fixing of an operational period of 12 months. In particular, the imposition of such a long operational period, coupled with the appellant’s considerable and recent history of committing offences relating to alcohol and breaching alcohol protection orders, puts him at considerable risk of breaching the conditions of his suspended sentence and spending the whole or a substantial part of the remaining three and a half months of his sentence in custody.
Counsel for the appellant was critical of some of the main findings made by his Honour when expressing his opinion that his offending was at the more serious level of offending that the court has had to deal with in respect of these types of offences. At the beginning of his remarks his Honour stated that the fact that he had consumed some alcohol and the valium and some other unidentified medication placed him in a position in which he was in no fit state to drive a vehicle at all. His Honour also said that because of his continued use of alcohol and medication or drugs, he had fallen foul of his previous suspended sentences and was “here today”. His Honour proceeded to stress the prevalence and danger of people driving motor vehicles under the influence of alcohol, particularly in Alice Springs, and said that the appellant caused serious actual potential danger to those people in the shopping centre by driving the car in the state he was in.
Counsel submitted that there was no factual basis for such opinions, and that his Honour therefore erred in holding the view that the appellant offending was particularly serious. His Honour could not have been satisfied beyond reasonable doubt that his driving was affected by the relatively low quantity of alcohol in his system and the valium and medication. I agree. His poor driving could equally have been due to his incompetence as a driver, particularly if he had not driven a motor vehicle for a long time.
Unlike the circumstances in Newton v Millar,[25] and no doubt many others such as Marshall v Court,[26] there were no exceptional circumstances in the present matter. The appellant’s careless driving occurred at very low speed following the request of the police officer for him to turn around in a narrow space in the one-way traffic lane. His blood alcohol content of 0.038 percent was not such as could lead to any inference that his careless driving was attributable to alcohol, as is often the case.
I agree that the most serious offending was driving without due care. However I do not consider that the objective seriousness of that offending was of the magnitude stated by his Honour, mainly because the driving was not associated with any exceptional circumstances such as driving whilst intoxicated or driving at speed. I would regard the objective seriousness of that offending as moderate.
I do consider that the sentence of four months imprisonment was manifestly excessive. I do not think it was proportionate to the offending. Even if the drive without due care offence, despite the absence of exceptional circumstances, did warrant some imprisonment when coupled with the other three offences, I do not consider that it warranted a sentence of four months imprisonment, after discount for the plea, suspended with an operational period of 12 months. Further, the sentence also included the driving disqualification and order for restitution.
I therefore allow the appeal, and proceed to resentence the appellant.
Resentence
After the hearing of the appeal I requested, and was provided with, the following additional information for the purposes of resentencing the appellant.
He is living at Amoonguna about 15 km south of Alice Springs with his partner Ms Audrey Miller and her family. He relies on Ms Miller to drive him between Amoonguna and Alice Springs. He receives $730 a fortnight from Centrelink and contributes about $400 a fortnight towards household expenses.
On 15 June 2015 he attended the NTLAC office and arranged for the $500 restitution ordered in this matter to be paid at $50 per fortnight directly from his Centrelink payments. That authority has not been revoked, and he continues to make restitution as ordered through the Centrepay scheme.
The appellant believes that his Alcohol Protection Order expired on 13 August 2015 (the expiry date stated in the Admitted Facts is 14 August 2015). He was detected consuming alcohol by police after that date, and has been notified that he will be or has been charged again with breaching the APO, because, police have told him, the expiry date had been extended. Mr McMahon disputes this, and has requested legal advice to resolve that dispute.
Apart from that, Mr McMahon has not been charged with further offending since being sentenced on 28 May 2015.
The appellant intends to continue to reside at Amoonguna until a Housing Commission flat in Alice Springs becomes available. He is on the waiting list for this. He does not know how long he will have to wait.
That additional information, particularly the fact that the appellant appears to have the support of his partner and family and has commenced paying restitution, gives me some optimism that he is anxious and able to rehabilitate.
Although I could not find that the appellant’s driving was impaired by the alcohol or other medication that he had consumed, he does need to realise that he may continue to commit offences, particularly for breaches of alcohol protection orders, if he does things in public after consuming alcohol or taking medication.
Leaving intact the present orders regarding licence disqualification and restitution, and taking into account the fact that he has already served almost three months of the operational period, I consider that the appropriate sentence for the four offences combined is 14 days imprisonment backdated to 28 May 2015.

Orders

I make the following orders:
1.The appeal is allowed.
2.The sentence for these four offences is quashed except for the orders for restitution and licence disqualification.
3.The appellant is sentenced to 14 days imprisonment backdated to 28 May 2015.
-------------------------

[1] s 52 Traffic Act.

[2] s 31(1) Traffic Act.

[3] s 24(2) Traffic Act.

[4] s 23(1)(b) Alcohol Protection Orders Act 2013.

[5] Club v Westphal [2010] NTSC 66.

[6] At [11].

[7] [2010] NTSC 55.

[8] Rontji v Westphal [2010] NTSC 67.

[9] Veen v The Queen (No 2) (1988) 164 CLR 465.

[10] Long v Westphal [2010] NTSC 55; Michael v Eaton [2010] NTSC 56.

[11] At [14].

[12] [2013] NTSC 75.

[13] Rontji v Westphal [2010] NTSC 67.

[14] Clair v Brough (1985) 37 NTR 11 at 14.

[15] At [17].

[16] At [20].

[17] Lalara v Malogorski [2012] NTSC 53.

[18] At [16].

[19] (1988) 164 CLR 465 at 477.

[20] [2003] NTSC 88.

[21] s 5(1)(a).

[22] (1988) 164 CLR 465 at 477.

[23] [2010] NTCA 8. See too Dodd v Byrne [2014] NTSC 31 at [37].

[24] Hoare v The Queen (1989) 167 CLR 348 at 354; Veen v The Queen (No 2) (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496.

[25] [2003] NTSC 88.

[26] [2013] NTSC 75.