Purnima Shankar v Kyle Saltmarch
[2012] ACTSC 171
•8 November 2012
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:
The appeal be allowed.
The order of the Magistrates Court, that the appellant is disqualified from holding or obtaining a driver licence for 40 months, be set aside.
The appellant be disqualified from holding or obtaining a driver licence until 7 July 2014.
The other orders of the Magistrates Court be confirmed.
Background
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.
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.
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 was trying to start the car.
Apparently, before the appellant realised that the problem was that the car was not in the appropriate gear to be started, her two employees returned to the business, because she could not afford to have all three of them absent any longer. It is not clear to me how this aspect of the explanation squares with the earlier action in sending the first employee out for a drive.
The plan, however, presumably because it was clear to everyone that the appellant was not in a condition to drive, was that she would determine and deal with the car’s problem and then call a taxi to take her back to her business. Instead, she started the car to test that it was in fact working, and drove about 10 metres before being stopped by running into the power box. There was no explanation offered for the presence of the open, half-empty bottle of vodka.
The appellant is a repeat offender for the purpose of relevant legislation. She was convicted of a high range prescribed concentration of alcohol (PCA) offence in NSW in 2007 and sentenced to 12 months imprisonment, fully suspended. Four years before that, she was convicted of failing or refusing to undergo a breath test.
Submissions made in the Magistrates Court, which were repeated in this Court, suggested that the appellant hardly ever drinks and, by implication, that she has been caught by police on almost the only three occasions she has ever drunk to excess. His Honour the sentencing Magistrate expressed concern at discrepancies between those submissions, made on instructions, and medical documents in evidence that included, for instance, a discharge diagnosis from The Hills Private Hospital in Sydney, in February this year, of “Bipolar Affective Disorder, current episode Depression in remission with Harmful use of Alcohol.” I do not accept counsel’s submission that this referred only to the use of alcohol on the occasion of this particular offence, and I share his Honour the sentencing Magistrate’s doubts more generally.
His Honour sentenced the appellant to an 18-month good behaviour order with several conditions, including 150 hours community service and urinalysis and blood tests as directed, as well as supervision that may include participation in counselling, that are not challenged in this appeal. His Honour also disqualified her from driving for 40 months, apparently on the basis of reducing the five-year period by a third.
His Honour noted the matters he had taken into account in reaching that sentencing disposition, being:
Firstly, your early plea of guilty. Despite the reservations I have about your insight in relation to the effect of alcohol, I accept that your early plea of guilty is evidence of acceptance of responsibility and remorse and has a utility value.
Importantly in this case, I also accept and I have taken into account what has been submitted to me about the circumstances, the unusual circumstances, leading up to you driving the vehicle. I accept that you received a call to the effect that one of your employees thought there was a problem with the vehicle, that you accepted a lift to that location and that you did not intend to drive the vehicle for any distance from there.
Now, whilst I accept that you did not intend any lengthy journey, it is clear that you nevertheless made a decision to start and move the vehicle and the fact that a collision occurred within the space of five to ten metres shows how dangerous that decision was.
Appeal grounds
The only appeal ground pursued, albeit reflecting three different formulations in the notice of appeal, was that the sentence was manifestly excessive.
In support of that, counsel for the appellant made repeated submissions, which in my view were ill-advised, about the appellant’s limited use of alcohol but also, almost incidentally, noted that the range for the disqualification period for a Level 3 or 4 drink driving offence appeared to be in the order of 18 to 24 months in the ACT. He referred me to several recent relevant Supreme Court decisions on appeal from the Magistrates Court that not only included disqualification periods falling within such a range but specifically referred to the existence of such a range (see in particular Scott v Wynants [2009] ACTSC 62).
Counsel also, again incidentally, mentioned other relevant Supreme Court decisions in which it had been made clear that the impact on a person’s employment or livelihood was a relevant matter in considering whether the default disqualification period applicable to a drink driving offence, which in this case, of course, is five years, should be reduced (see for instance Barac v Thexton [2008] ACTSC 137; Newham v Cogle [2012] ACTSC 76).
Conclusion – disqualification period was manifestly excessive
Having regard to the other recent decisions of this court referring to a disqualification period range of 18 to 24 months for high range drink driving offences, I am satisfied that the disqualification period of 40 months in this case was manifestly excessive and should accordingly be replaced.
Although it was not identified as an error, I note also that, although it was put to his Honour in general terms that the appellant used her car in her business (including driving to Sydney to collect specialty goods for her retail and café business) and also for taking her son, who has heart problems, for checkups about twice a year at Westmead Hospital in Sydney and that, therefore, the effect on the appellant of a licence disqualification would be significant, His Honour did not refer to this at all in his sentencing remarks.
The appeal, accordingly, will be allowed and the appellant will be re-sentenced.
Re-sentencing
For the purposes of the re-sentence, counsel for the appellant tendered a certificate showing that she had completed an alcohol and drug awareness course a couple of weeks after she was sentenced for this offence, and made further lengthy submissions about the appellant’s business needs for her car. I found these submissions relatively unconvincing, especially given that it was apparent that the appellant had been managing without a licence for the last 12 months since she was originally suspended. Nevertheless, I accept that the absence of a driver licence must cause real inconvenience for a person running a small business, and have had regard to that in determining a new disqualification period.
Apart from that, I have considered the matters identified in the New South Wales guideline judgment as defining an “ordinary” high range PCA offence (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), and note the following matters:
(a)The first aspect of an ordinary case is described as “that the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol.” I accept, as his Honour the sentencing Magistrate apparently did, that this was not a case involving personal inconvenience and that there was no evidence that the appellant thought that she was in an appropriate state to drive. On the other hand, counsel submitted that the appellant was so drunk that her judgment was impaired, which is no doubt correct but does not seem to me to be a mitigating factor in relation to high-range drink-driving offences.
(b)The next criterion for an ordinary case is that the offender was detected by a random breath test, and I note that in this case the appellant was detected by the police because of the particular circumstances of her conduct.
(c)I accept for this purpose that the offender has prior good character, that being the third criterion.
(d)It is not the case that the offender has nil or a minor traffic record, given that she has two previous drink-driving offences, one of those specifically involving a high-range blood alcohol level.
(e)Her licence was suspended on detection for, effectively, a period of three months.
(f)She did plead guilty, and I have accepted that she will be significantly inconvenienced by the loss of her licence.
(g)The other criterion in that list is that there is little or no risk of reoffending, and I shall return to this issue.
The guideline judgment also notes factors that will increase the moral culpability of a high-range PCA offender. Several of these are not relevant here, but the two that are relevant are:
(a)first, that the appellant had a degree of intoxication well above 0.15; and
(b)secondly, that there was a collision between her vehicle and another object.
Thus, apart from whatever mitigation is provided by the rather odd circumstances in which the appellant committed this offence, the offence seems to fall into the category of ordinary high-range offences, except in relation to several factors in which her circumstances would make it a more, rather than a less, serious offence. As well, there are the two factors applicable in this case that are said in the guideline judgment to increase her moral culpability.
Finally, I must record that I am far from satisfied that the appellant’s intoxicated state was an isolated incident or that there is little or no risk of re-offending. Accordingly, the appellant is, in my view, liable to a disqualification period above the range for an ordinary offence, noting that the ACT range may be below that provided for in the guideline judgment, and a disqualification period reflecting that she should not drive for 32 months all up seems to me to be appropriate.
To achieve that, I shall impose a new disqualification period that takes account of the periods in the last year that she has refrained from driving, even while not legally obliged to do so, and that recognises that the initial three-month suspension period will be automatically deducted from the period I set, the end result of which will be that she must not drive for a further 20 months. The other elements of the sentence will be confirmed.
Having regard to the fact that the appellant’s licence was suspended for three months and the fact that she was subject to disqualification between 1 May this year and 28 May, and noting periods during which she did not drive although not under any obligation not to drive, the appellant’s licence is disqualified for such period as would entitle her to have her licence returned on 7 July 2014. I confirm all the other aspects of the sentencing.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 12 February 2013
Counsel for the appellant: Mr M Stenberg
Solicitor for the appellant: Mark Stenberg & Associates by their agent
Ben Aulich & Associates
Counsel for the respondent: Mr K. Lee
Solicitor for the respondent: Director of Public Prosecutions
Date of hearing: 8 November 2012
Date of judgment: 8 November 2012
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