Purnima Shankar v Kyle Saltmarch

[2012] ACTSC 171

PURNIMA SHANKAR v KYLE SALTMARCH
     [2012] ACTSC 171 (8 November 2012)

APPEAL AND NEW TRIAL – In general and right of appeal – appeal from Magistrates Court – appeal against sentence – disqualification period manifestly excessive – appeal upheld – appellant re-sentenced by imposing reduced driving disqualification period.

TRAFFIC LAW – Offences – driving with the prescribed concentration of alcohol – period of disqualification – relevant factors and determination of proper period – claim of limited alcohol use rejected – range for disqualification period for Level 3 or 4 drink driving offence – impact of disqualification on offender’s employment or livelihood – appellant  re-sentenced by imposing reduced driving disqualification period.

Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303
Barac v Thexton [2008] ACTSC 137
Newham v Cogle [2012] ACTSC 76
Scott v Wynants [2009] ACTSC 62

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 39 of 2012

Judge:              Penfold J
Supreme Court of the ACT

Date:               8 November 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCA 39 of 2012
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

PURNIMA SHANKAR       Appellant

AND:

KYLE SALTMARCH          Respondent

ORDER

Judge:  Penfold J
Date:  8 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The order of the Magistrates Court, that the appellant is disqualified from holding or obtaining a driver licence for 40 months, be set aside.

1. The appellant be disqualified from holding or obtaining a driver licence until 7 July 2014.

1. The other orders of the Magistrates Court be confirmed.

Background

1. Purnima Shankar was convicted of drink driving with a level 4 blood alcohol reading after having been found by police sitting in her stationary car on the footpath in Overall Avenue, Casey, at that time a suburb still under development and apparently largely deserted by early evening when this offence took place.  The date of the offence was 8 November 2011.

1. The car had apparently collided with an ActewAGL power box.  The appellant was in the driver’s seat of the car.  She smelled strongly of alcohol and was slurring her words.  There was a half-empty bottle of vodka in the driver’s foot-well in the car.  At the police station, the appellant was apparently incapable of giving a sufficient breath sample and a blood test was taken instead, which showed a blood alcohol level of 0.259. 

1. The appellant’s explanation for this incident was that she had lent her car to an employee in her business to go for a drive to make himself feel better.  He had stopped the car and was unable to restart it, so he contacted the appellant.  She was driven by another employee to where the first employee…