Mwauluka v Turkich
[2013] ACTSC 1
•10 January 2013
JACKSON MWAULUKA v JONATHON TURKICH
[2013] ACTSC 1 (10 January 2013)
APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – sentencing Magistrate misinterpreted appellant’s criminal record as indicating repeat drink-driving after a term of imprisonment for drink-driving had been suspended –term of imprisonment had previously been imposed and suspended for driving while suspended – no repeat of driving while suspended – consideration of range of disqualification periods for relevant offences by reference to disqualification periods imposed in Supreme Court on appeal from Magistrates Court – significance of threat to employment arising from extended disqualification period – appeal upheld – appellant resentenced.
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT), ss 10, 12, 33, 33(1)(r)
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19
Barac v Thexton [2008] ACTSC 137
Baxter v The Queen (2007) 173 A Crim R 284)
Dawson v Coles [2012] ACTSC 147
Dinsdale v The Queen [2000] 202 CLR 321
Douar v The Queen (2005) 159 A Crim R 154
Flanigan v Cook [2012] ACTSC 71
Hammond v RTA and Anor [2006] ACTSC 125
Hugg v Driessen [2012] 261 FLR 324
Kamara v Stone [2010] ACTSC 92
Kennedy v Egan [2011] ACTSC 163
Krewaz v Jordan [2012] ACTSC 84
McGregor v McGuire [2008] ACTSC 7
Newham v Cogle [2012] ACTSC 76
Scott v Wynants [2009] 4 ACTLR 13
Sheather v Bishop [2012] ACTSC 77
Shires v Edwards [2011] ACTSC 132
Thorn v Laidlaw [2005] ACTCA 49
REASONS FOR DECISION
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 48 of 2012
Judge: Penfold J
Supreme Court of the ACT
Date: 10 January 2013
IN THE SUPREME COURT OF THE )
) No. SCA 48 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JACKSON MWAULUKA
Appellant
AND:JONATHON TURKICH
Respondent
ORDER
Judge: Penfold J
Date: 10 January 2013
Place: Canberra
THE COURT:
allowed the appeal; and
re-sentenced the appellant, for the offence of, as a repeat offender and a special driver, having a Level 3 concentration of alcohol in his blood within the relevant period after having driven, to:
(a)imprisonment for three months, to be suspended on the appellant signing a good behaviour undertaking for nine months with security in the amount of $1,000; and
(b)disqualification from driving for 12 months.
Introduction
1. Mr Mwauluka was charged with a Level 3 driving offence (s 19, Road Transport (Alcohol and Drugs) Act 1977 (ACT)) committed on 17 December 2011. He pleaded guilty in the Magistrates Court, and was sentenced on 14 June 2012. The sentencing Magistrate convicted Mr Mwauluka, disqualified him from driving for two years instead of the automatic three-year disqualification period (the default disqualification period) and sentenced him to three months imprisonment, to be served by periodic detention.
The appeal
2. Mr Mwauluka has appealed against his sentence. The grounds of appeal were, generally, that the sentence was manifestly excessive, that her Honour misinterpreted Mr Mwauluka’s criminal record, that her Honour erred in finding that Mr Mwauluka had shown no willingness to address his offending behaviour, and that as a result of her mistaken factual findings, her Honour did not properly consider the option of suspending Mr Mwauluka’s prison sentence. Mr Mwauluka also sought leave to put further evidence before the appeal court about several matters relevant to his sentencing.
3. At the hearing, for reasons that are not clear to me, counsel for Mr Mwauluka chose to leave his strongest appeal ground (the misinterpretation of the criminal record) until last, arguing instead, for a considerable time, about a variety of far less straightforward grounds of appeal.
4. The submissions made by counsel for the respondent were shorter, but again, it was not until the end of them that counsel for the respondent conceded her Honour’s error in misinterpreting the criminal record, and he then made no real attempt to persuade me that that error did not require Mr Mwauluka to be re-sentenced.
5. Much time could have been saved in the hearing of this appeal had I not made an ill-judged assumption that counsel were in possession of more information than could be found in the appeal books and knew what they were doing in how they chose to approach the various appeal grounds.
6. I do not therefore propose to canvass all the appeal grounds in detail, but shall concentrate on the ground of appeal that is most clearly made out. I shall, however, make some general comments about some other matters.
The facts
7. Mr Mwauluka was stopped by police about 3am on a Saturday night on King Edward Terrace in Parkes. He had been out with his wife, there had been an argument, and she had made her own way home. Mr Mwauluka had a few more drinks and was driving home when he was stopped. Police formed the opinion that he was moderately affected by alcohol. He was breath-tested and produced a reading of 0.097, a Level 3 reading. Because Mr Mwauluka had a probationary licence, he was subject to a zero blood alcohol level requirement. Mr Mwauluka’s licence was immediately suspended and he was charged. Mr Mwauluka said that after his 90-day suspension expired, he had continued not to drive for the next three months or so until the matter came to court.
8. Mr Mwauluka had three prior convictions for drink-driving offences committed in Victoria in 2009 (two offences) and 2006. On his appearance in court in Victoria in April 2009, he was also dealt with for offences including driving while his authorisation was suspended, failing to carry a driver licence, stating a false name, using a hand-held mobile phone while his vehicle was moving, and breaching what is described in his criminal record as an “alcohol interlock condition”. For the offence of driving while authorisation suspended, he was sentenced to three months imprisonment, fully suspended. For offences including the drink-driving offences, a community based order was imposed which required assessment and treatment for alcohol, drug, medical, psychological and psychiatric issues and the performance of 50 hours community service. On the other charges, he was fined a total of $800.
9. Mr Mwauluka, who is now 37, came to Australia from Zambia in his early 20s. There is no suggestion of any traumatic background to that move. Her Honour summed up his subjective circumstances as follows:
In any event, Mr Mwauluka, the circumstances that present before the court are these. You are an intelligent man. You are a person who has none of the disadvantages that one often sees with people who come before this court. You come from a good family. You have a supportive family now and have done in the past, some of those family members are here in Australia, mainly in Melbourne, and you have family overseas who you help to support financially. I note that you lost your father in 1997 but apart from that there’s nothing to indicate any particular hardship that you may have suffered.
The pre-sentence report indicates that you have post-graduate qualifications in engineering. You are a person who is in receipt of a very good income. You work full time. Your financial situation is a good one but it seems that in 1997, according to that pre-sentence report, when you came to Australia you started to drink. Now one might think that circumstances of your arrival here was such that your exposure was different, I don’t know. But the reality is you’ve had a number of reminders as to what is acceptable in terms of driving and drinking within this context.
There are no medical or mental health issues that I need to take into account in relation to your presentation to the court. I am aware of the fact that you have a baby due on 21 August and that is a factor that I have taken into account in determining how to deal with you today.
In terms of your need for a licence it has been put to the court that you are able to continue in your employment but to do so causes you inconvenience because you are required to use public transport or taxis on occasion to do the work outside of your office and indeed to get from home to work. Well, no doubt that is inconvenient, however inconvenience is not a significant issue it seems to me in terms of the factor of disqualification. It is not a factor to be entirely disregarded but it is not one which urges me to extreme leniency in terms of the disqualification which might be imposed.
10. Counsel on the appeal took issue with the accuracy of her Honour’s description of Mr Mwauluka’s need for a licence, but effectively conceded that the description reflected what had been put to her Honour by counsel who had represented Mr Mwauluka in the Magistrates Court.
The sentencing
11. The problem identified in her Honour’s approach was that in the course of argument, her Honour said:
I do note that on the last occasion Mr Mwauluka was dealt with for an offence of this type he was subjected to a suspended prison sentence in Victoria.
12. This comment (which was strictly accurate in terms of the actual events on the relevant occasion but indicated that her Honour had misled herself in an important respect) was not challenged by Mr Mwauluka’s counsel. Shortly afterwards, her Honour said:
Well, the sentence was suspended on the last occasion in Victoria in 2009 and that doesn’t seem to have had the deterrent effect that one might have hoped. So what basis would there be for me suspending a prison sentence in these circumstances? Why would I form the view that that is likely to prevent Mr Mwauluka from driving with alcohol above the prescribed limit in his system again?
13. Counsel responded by noting that prevention was only one aim of sentencing, but did not challenge her Honour’s comment about the deterrent effect of the previous suspended sentence.
14. When her Honour came to sentence Mr Mwauluka, she said:
The reality is the court needs to deal with the situation which is before it and in Mr Mwauluka I have before me a gentleman with all the advantages in life, who has had numerous opportunities to deal with the fact that he has breached the law in respect to driving and alcohol and who has shown a flagrant disregard in doing so.
15. Thus, it seemed undisputable, and the respondent did not dispute the point, that her Honour sentenced Mr Mwauluka on the basis that his most recent previous drink-driving offence had resulted in a suspended three-month prison term, and that this had not been sufficient to deter him from the fourth offence, for which her Honour was then sentencing him. In fact, the suspended prison term imposed for driving while his authorisation was suspended may explain why Mr Mwauluka had been so careful not to drive between the time when his ACT licence was suspended after the current offence until the time when the matter was dealt with in the Magistrates Court. Her Honour’s conclusion that a suspended prison term for drink-driving had not acted as a deterrent to repeated drink-driving was clearly not open to her, nor indeed was the conclusion that a suspended prison term for driving while suspended had not deterred further driving while suspended.
16. Having found this error, but before deciding whether to uphold the appeal, I had to consider whether another sentence was warranted in this case. For the purposes of that consideration, information about Mr Mwauluka’s current circumstances, and developments since the original sentencing, were relevant and admissible, and further submissions were able to be heard (Douar v The Queen (2005) 159 A Crim R 154; Baxter v The Queen, (2007) 173 A Crim R 284). Accordingly, Mr Mwauluka’s affidavit dated 28 August 2012 was admitted in relation to a possible re-sentencing.
17. Mr Mwauluka’s affidavit, as well as annexing his contract of employment, provided the following information:
(a) Mr Mwauluka’s lawyer did not advise him that he was free to drive again 90 days after he was suspended, so he did not drive from 17 December 2011 (the date of the offence) until 22 June 2012 (6 months and 5 days).
(b) Mr Mwauluka’s partner is in Australia on a bridging visa and is not entitled to work under the conditions of her visa, so she is financially dependent on him.
(c) Mr Mwauluka’s work as an IT consultant with a multi-national company required him to attend different work sites within the ACT when and if required. On average, he attended up to three different work sites each week. Sometimes this work is on-call, 24 hours per day, 7 days per week. His inability to drive before appealing had made this difficult and had “necessitated my wife driving me to and from these work sites each day whilst my licence was suspended, and often waiting for me at work sites until I had finished, in order to drive me to a different work site immediately afterwards.”
(d) Since his wife had recently given birth, she was unable to act as Mr Mwauluka’s driver, and this would continue to be difficult in the future. Mr Mwauluka was concerned that without his licence, he might lose his job and it would be extremely difficult to find another similar job. Mr Mwauluka also stated that his need to be available for weekend work would make periodic detention impossible.
(e) Mr Mwauluka’s family life would be affected by the loss of his licence and by periodic detention, because it would prevent him taking his family to Melbourne to see his mother and other family members, and his long working hours mean that weekends are the only time he has to spend with his family.
(f) Mr Mwaluka had undertaken the Karralika “Reversed” Program shortly before being sentenced, which had covered issues to do with anger management, drink-driving offences in particular and strategies to avoid offending more generally, and the various impacts of driving while affected by alcohol.
18. Counsel for Mr Mwauluka noted from the bar table that Mr Mwauluka had advised his employers of the current offence and they were awaiting the outcome of the appeal before deciding whether to take any action and, if so, what.
19. Mr Mwauluka’s evidence about his employment arrangements and other matters was the subject of cross-examination, and the position emerged as rather vaguer and less convincing than it might seem at first glance.
20. Mr Mwauluka gave oral evidence that his wife had recently given birth to their baby by caesarean section and was not at that stage permitted to drive; this was to be reviewed by her doctor shortly.
21. He said that he had four clients in the ACT, located in four different areas of the city, and for those clients he usually works on site. Mr Mwauluka said that he usually worked at three different sites in the course of a week. He also has clients in Victoria, New South Wales and the Northern Territory, who can be serviced remotely from his employer’s main office in Turner or, apparently, from his home in Bruce.
22. Mr Mwauluka confirmed the assertion in his affidavit that he is on call 24 hours, seven days a week, and said that he did not think he could rely on taxis to get to the various places he might be required in an emergency. However, he conceded that in the six months after the offence, while he was not driving, his wife had never had to drive him to an emergency call at night.
23. Mr Mwauluka’s oral evidence confirmed the impression given by his affidavit, that during his six months without a licence, he had relied on his wife to chauffer him around (including, apparently, to hang around in the shops in Civic in case he needed to be driven somewhere from the office in Turner). It also revealed he has made no effort to familiarise himself with the public transport system in Canberra. He seemed surprised to discover that buses ran regularly between Civic and Woden. Nor had he ever walked the few blocks from CSIRO in Campbell into Civic.
24. Counsel pointed to a provision in Mr Mwauluka’s contract (annexed to his affidavit) obliging Mr Mwauluka to “provide a fully-maintained and insured motor vehicle and maintain a valid driver’s licence as necessary to properly perform your duties if it is an inherent requirement of your role” (my emphasis). In initial submissions, counsel had overlooked the emphasised phrase, and the absence of anything in the contract, or otherwise in evidence, making the maintenance of a valid driver’s licence an inherent part of Mr Mwauluka’s role.
25. Mr Mwauluka was to have a meeting with his supervisor after this appeal was finalised, and expected to be asked how he would continue to do his job during whatever further period for which his licence is suspended. Counsel put to me that Mr Mwauluka was genuinely concerned that his supervisor would think he was joking if he suggested relying on public transport to travel between his various workplaces. I did not need to determine whether this reflected on Canberra’s public transport system, or on Mr Mwauluka’s apparent total lack of effort so far to find a way of getting around Canberra without a licence (apart from relying on his wife).
26. Nor was I convinced by the implication of Mr Mwauluka’s comment in his affidavit that without a licence, he would be unable to take his family to Melbourne to visit his mother and other relatives, given his willingness to rely on his partner to drive him around – there was no reason to believe that her caesarean section would prevent her driving in the long term. There are also various public transport options available between Canberra and Melbourne.
27. Nevertheless, despite my scepticism about Mr Mwauluka’s evidence, I did accept that any further period of licence disqualification would make Mr Mwauluka’s life significantly more difficult, and in particular, would at best create real inconvenience for him in performing his work and would at worst jeopardise his continued employment.
Impact of licence disqualification on employment
28. The impact of a licence disqualification on an offender’s work arrangements is not explicitly a matter that can be taken into account in sentencing, but s 33(1)(r) of the Crimes (Sentencing) Act 2005 (ACT) permits consideration of particular hardship likely to be caused to an offender by the imposition of a particular penalty.
29. Furthermore, I accept that there is considerable authority (much of it collected by Refshauge J in Barac v Thexton [2008] ACTSC 137) to the effect that the matter of losing one’s employment is a matter to be taken into account in sentencing under s 33(1) of the Crimes (Sentencing) Act. I note, however, that there is a danger in allowing members of the community to believe that employment considerations will protect them from any extended loss of licence for drink-driving offences, or more generally that needing a driving licence will justify a reduced disqualification period (rather than requiring a higher level of commitment to avoiding drink-driving) .
30. For the reasons already noted, I consider that, while a prison term appears to be the necessary next step in the process of deterring Mr Mwauluka from further drink-driving offences, it should at this stage be fully suspended.
31. However, I cannot see any basis on which I could find that Mr Mwauluka has already served an adequate “suspension” (just over six months) for a Level 3 offence that is his fourth in six years and where there appear to be no particular mitigating factors in relation to the offence, nor any explanation for his excessive alcohol consumption that might engage the court’s sympathy. There must also be a further period of disqualification.
Other appeal grounds
32. As already noted, counsel for Mr Mwauluka made several other extended submissions before focussing on the sentencing Magistrate’s error in relation to Mr Mwauluka’s criminal history. I do not propose to deal with these at length, but there are several comments that can usefully made.
Principle of parsimony
33. In relation to her Honour’s decision to require Mr Mwauluka’s prison sentence to be served as periodic detention, counsel argued that the “principle of parsimony” required a sentencer imposing a prison sentence to explicitly consider suspending that sentence, or requiring it to be served by periodic detention, before he or she could specify that the sentence should be served in full-time custody.
34. Counsel cited Thorn v Laidlaw [2005] ACTCA 49 at [30] for a description of the principle of parsimony, as follows:
A sentence of imprisonment should never exceed that which is the minimum necessary to accomplish the sentencing objectives which the sentencer considers should have most weight in the case at hand: Hoare v The Queen (1989) 167 CLR 348 at 354; Veen v The Queen [No.2] (1988) 164 CLR 465 at 472. Such a notion has been statutorily recognised in other jurisdictions and has been termed the principle of ‘parsimony’. It may be a useful and acceptable neologism to call it the principle of minimality. In the ACT it is the necessary and implicit corollary to s 345(1) of the Crimes Act 1900 (ACT) which provides:
A court shall not pass a sentence of imprisonment on any person for an offence against a territory law unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.
35. I do not dispute the general proposition implicit in counsel’s submission that there are certain cases in which an explicit consideration of ways to serve a prison sentence other than by full-time custody is desirable or even required. For instance, where an offence is clearly such as to require a prison sentence, but the subjective circumstances of the offender compel consideration of a non-custodial means of serving that sentence, an explanation of the sentencer’s final decision about how the sentence is to be served would be at least desirable. On the other hand, there will be many other cases in which a sentencer would be wasting everyone else’s time as well as his or her own in explaining why, for instance, it was not appropriate to suspend a sentence imposed for a brutal murder.
36. Furthermore, counsel’s suggestion that the principle of parsimony requires that the sentencer, before requiring a prison sentence to be served in a particular way, explicitly rejects all more lenient options raises difficult questions, at least in that fairly crude form.
37. In Dinsdale v The Queen [2000] 202 CLR 321, Kirby J said:
76. Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms [that his Honour had previously quoted] draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified.
...
79. The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do". (citations omitted)
38. The principle that a suspended sentence should not be used if full-time custody for the relevant period would not be appropriate is a matter that sentencers must keep firmly in mind. Apart from other considerations, once a prison sentence is imposed, there is the possibility that the offender will in fact finish up serving that whole prison sentence in full-time custody, whether due to a refusal of parole, a breach of parole conditions, a failure to attend for periodic detention, a breach of a good behaviour order or for some other reason.
39. If this approach is accepted, it is clear that a sentencer must assume that any prison term might be served in full-time custody before he or she can properly conclude that a prison term is the appropriate penalty (Crimes (Sentencing) Act s 10). Having reached that conclusion, it may be that a slightly different version of the principle of parsimony can and should be applied to the various options for serving a prison sentence; if, for instance, the aims of sentencing can be adequately, or indeed better, served if the sentence is suspended, then that approach should be adopted rather than requiring full-time custody in the first instance. However, ss 10 and 12 of the Crimes (Sentencing) Act make it clear that a suspended sentence is not a different sentence that must be ruled out in accordance with the principle of parsimony before a sentence to be served by periodic detention or a sentence of full-time custody can be imposed; rather, suspending a sentence is a way of dealing with a sentence of imprisonment which, once imposed, would be served in full-time custody unless other orders are made.
Suspicious nature of disqualification periods that can be expressed in fractions
40. Counsel also suggested that the disqualification period imposed by the Magistrate, being two-thirds of the default disqualification period, was suggestive of an “impermissible approach” to determining that period.
41. In making this submission, he relied on decisions of Refshauge J, in particular Newham v Cogle [2012] ACTSC 76 and Sheather v Bishop [2012] ACTSC 77, (Sheather) where his Honour expressed the view that it was an error for a sentencer considering a licence disqualification to start from the default disqualification period and then reduce it as if it were a maximum or a tariff. Rather, his Honour said, a sentencer “needs to identify whether there is a sufficient and appropriate reason to reduce the period and, if so, to determine what period, not less than the statutory minimum, is necessary to penalise the offender and protect the public”. In Newham v Cogle, his Honour said:
45. It seems to me that her Honour also appeared to approach the automatic disqualification period incorrectly. It is neither a tariff (that is, a sentence standard: R v Sumner [2007] SASC 376 at [78]) nor a maximum (Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]). The default period can be reduced, to a statutory minimum, for “sufficient and appropriate reason”: Guideline Judgment at 336; [127]. It is inevitable that there will be hardship, but it must be proportionate to the offence and the penalty for it and the need to protect the community. It can take into account various factors, including the nature of the offender’s employment, the absence of viable alternative transport and sickness or infirmity of the offender or another: Guideline Judgment at 340; [146]. As an example, see R v Bennett [2011] SASCFC 68 at [26].
46. To start from the automatic or default period and then reduce it as if a maximum or a tariff is, in my view, an error. A sentencer needs to identify whether there is a sufficient and appropriate reason to reduce the period and, if so, to determine what period, not less than the statutory minimum, is necessary to penalise the offender and protect the public. That the learned sentencing Magistrate did not do and, in my view, her Honour thereby came to a manifestly excessive period.
42. In Sheather, his Honour applied the approach recommended as follows:
46. It is, therefore, necessary to consider whether to reduce the period of disqualification and, if so, to what period I should reduce it.
47. It seems to me that the hardship to Mr Sheather and his employment that will be suffered by his loss of licence is a sufficient and appropriate reason to reduce the period of disqualification. I need, then, to consider the relevant factors, both as to penalty and protection of the community to arrive at an appropriate period.
48. The factors I take into account are:
(i) the level of the reading, above the mid range for Level 3;
(ii) the prior offences, principally, and in this case perhaps only, the earlier drink-driving offence, though committed more than eleven years ago;
(iii) the fact that there was no manner of driving that appears to have drawn Mr Sheather to the attention of police and no evidence of other road users put at risk;
(iv) the significant reliance on his licence for his employment;
(v) the period of two months and nine days of immediate suspension which, as was said in Police v Waller [2011] SASC 232 at [13], can be taken into account, though I consider in the circumstances, that it should be rounded down to two months in this case;
(vi) his plea of guilty at the earliest opportunity;
(vii) the fine of $550; and
(viii) his positive good character.
49. In all the circumstances, I considered a period of twelve months was a sufficient penalty to penalise Mr Sheather to protect the community
43. I confess to being unsure of the significance of the two-stage process recommended by his Honour, given that the matter relied on in Sheather to find that the disqualification period should be reduced (the hardship caused by the penalty, in particular in relation to the offender’s employment) seems to be simply one of the factors relevant in determining an alternative disqualification period, and was also considered for that purpose by his Honour. I am not sure on what basis any one of those factors should be elevated to the position of justifying a threshold decision that the disqualification period should be reduced. Fortunately, that particular issue is not relevant for present purposes.
44. Counsel’s submission in this appeal, for which Refshauge J’s comments provided the context, was that in choosing a new disqualification period, the Magistrate may have applied a mathematical approach rather than the approach recommended by Refshauge J. The basis for this submission was, apparently:
(a) that her Honour’s reference to the new disqualification period taking into account the plea of guilty and the impact on Mr Mwauluka and his family of the loss of licence was an inadequate explanation of the particular new period; and
(b) that the fact that the disqualification period (described by her Honour as “two years rather than the three years which otherwise would have applied”) represented two-thirds of the default period suggested, despite the absence of anything in her Honour’s sentencing remarks indicating any kind of calculation of that period, that it had been reached mathematically (whatever that means in this context) rather than by the sentencing process recommended by Refshauge J.
45. No argument was advanced that two-thirds was a fraction that particularly justified a suspicion of a mathematical approach, or that it fell into an identifiable class of fractions that would have that effect. Nor, unsurprisingly, was there any submission that any disqualification period that can be expressed as a fraction of the default disqualification period (in other words, any disqualification period less than the default disqualification period) would give rise to an equivalent suspicion. The implied submission that disqualification periods that happened to reflect particular but so far unspecified fractions of the default disqualification period could give rise to a suspicion of an impermissibly mathematical approach to determining that period might appeal to numerologists, but it did not belong in a court room.
46. For the reasons already indicated, I considered that the three months imprisonment should stand, but that it should be fully suspended. None of the periodic detention imposed had been served before the appeal was filed.
47. Several cases were drawn to my attention as showing the Supreme Court’s approach to disqualification periods for relevant drink-driving offences, including at least, in roughly chronological order:
Hammond v RTA and Anor [2006] ACTSC 125
McGregor v McGuire [2008] ACTSC 7
Barac v Thexton [2008] ACTSC 137
Scott v Wynants [2009] 4 ACTLR 13
Kamara v Stone [2010] ACTSC 92
Shires v Edwards [2011] ACTSC 132
Kennedy v Egan [2011] ACTSC 163
Hugg v Driessen [2012] 261 FLR 324
Flanigan v Cook [2012] ACTSC 71
Newham v Cogle [2012] ACTSC 76
Sheather v Bishop [2012] ACTSC 77
Krewaz v Jordan [2012] ACTSC 84
Dawson v Coles
[2012] ACTSC 147
48. There is no need to canvass the detail of each of those decisions, but they covered Level 3 and 4 blood alcohol results, and involved mainly first offenders or those whose previous drink-driving offences were at least five and in some cases many more years earlier. In that group of decisions, few of the disqualification periods imposed on appeal exceeded 12 months. Repeat offenders, especially those whose previous offences were more recent, were likely to receive disqualifications of up to 24 months on appeal. In Scott v Wynants, Higgins CJ said at [14] in relation to Level 4 offences (which carry a default disqualification period of five years):
It is significant that a statistical analysis of previous matters of a like kind (that is, high range repeat offenders) in the ACT Magistrates Court reveals a routine reduction of the default period from five years to between 18 and 24 months.
49. Accepting that Mr Mwauluka’s life would be significantly more difficult without a driver licence and, in particular, that his employment might be at real risk from any further period of disqualification, I was satisfied that there was a basis for considering a reduction in the default disqualification period of three years. Having regard to the range of disqualification periods imposed on appeal to the Supreme Court and already mentioned, and noting Mr Mwauluka’s Level 3 reading, his previous drink-driving offences, his employment position as already discussed, and his plea of guilty on his third court appearance, I considered that a total disqualification period of roughly 15 months was appropriate in this case. The period imposed would be automatically reduced by the three months of Mr Mwauluka’s suspension and was actually reduced, before being imposed, to account for three months of the other period of just over three months during which Mr Mwauluka refrained from driving. Thus, the suspension imposed was expressed as 12 months, which gave an effective further disqualification period of nine months.
Conclusion
50. Mr Mwauluka’s appeal was upheld and he was be re-sentenced as set out below.
Re-sentencing
51. Mr Mwauluka was re-sentenced in the following terms:
I now resentence you, on the charge that, as a repeat offender and special driver, you had a Level 3 concentration of alcohol in your blood within the relevant period after having driven, as follows:
·To imprisonment for three months, reduced from four months for your plea of guilty; and
·To disqualification from driving for a period of 12 months from today, noting that this will be reduced by the period of suspension already served after you were charged with the offence, and that you therefore have a further nine months during which you must not drive.
The sentence of imprisonment will be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for nine months, with security in the amount of $1,000.
You will be given a written copy of the good behaviour order, and it will be explained to you by the court officials. But in short, it means that for the next nine months, you need to keep out of trouble. If you commit another offence during that time, you may find yourself back before this court to be re-sentenced for this offence, as well as losing your $1,000.
In particular, Mr Mwauluka, if you were to commit a further high range drink driving offence, you really would be looking at a prison sentence with some or all of it served in custody.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Acting Associate:
Date: 10 January 2013
Counsel for the appellant: Mr P. Edmonds
Solicitor for the appellant: Canberra Criminal Lawyers
Counsel for the respondent: Mr T. Jackson
Solicitor for the respondent: Office of the Director of Public Prosecutions
Date of hearing: 22 and 25 October 2012
Date of judgment: 10 January 2013
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