Sharon Suthern v Mark Wilson
[2012] ACTSC 201
•18 December 2012
SHARON SUTHERN v MARK WILSON
[2012] ACTSC 201 (18 December 2012)
APPEAL – appeal from Magistrates Court – appeal against sentence – driver’s licence disqualification – manifest excess – not pursued – appeal dismissed
APPEAL – appeal from Magistrates Court – appeal against conviction – driver’s licence disqualification – specific error – whether failure to exercise discretion to impose Non-Conviction Order – subjective features justify exercise of discretion – subjective features considered by Magistrate but outweighed by deterrence – no error either of law or fact in the sentence to permit interference with Magistrate’s sentencing discretion – appeal dismissed
Crimes (Sentencing) Act 2005 (ACT), s 17
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 63 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 18 December 2012
IN THE SUPREME COURT OF THE )
) No. SCA 63 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SHARON SUTHERN
Appellant
AND:MARK WILSON
Respondent
ORDER
Judge: Burns J
Date: 18 December 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The orders of the Magistrate are confirmed with the disqualification period beginning today, but a period of 7 days is to be deducted from the disqualification period to reflect the time the appellant was without her licence.
On 1 August 2012 the appellant was sentenced in the ACT Magistrates Court with respect to one count of driving a motor vehicle with a prescribed concentration of alcohol in her blood. The concentration on that occasion was 0.114 grams of alcohol per 100 millilitres of blood; being a level three concentration.
The appellant entered a plea of guilty to the charge and was at that time represented by Mr Sharman. After hearing Mr Sharman in mitigation the learned Magistrate imposed a conviction and fined the appellant $500. She was also required to pay $69 court costs, $50 in criminal injuries compensations and $10 victim’s levy.
The appellant now appeals from the orders made by the learned Magistrate. In her notice of appeal the appellant appealed only from the sentence imposed by the Magistrate, but the appellant’s counsel, Mr Sabharwal, has been granted leave to amend the notice of appeal in order to also appeal from the conviction recorded. This does not suggest that the appellant is seeking to deny that she was guilty of the offence to which she entered her plea of guilty. However, the gist of the present appeal is that the appellant should have been dealt with by way of Non‑Conviction Order pursuant to section 17 of the Crimes (Sentencing) Act 2005 rather than by way of the imposition of a conviction and the penalties that were then imposed by the learned Magistrate.
It is true that there were certainly subjective features, and one may say strong subjective features, that could have justified the learned Magistrate dealing with the matter by way of a Non-Conviction Order. The appellant had been the holder of a driver’s licence for some 26 years and had no previous convictions recorded against her. The reading of 0.114, whilst a level three reading, is not amongst the highest readings that come before the Magistrates Court. The appellant also clearly had a need for a driver’s licence. All of those circumstances were taken into account by the learned Magistrate, however, the learned Magistrate considered that the requirements of general deterrence, in particular, warranted the imposition of a conviction and the penalties that she then imposed including the minimum disqualification of three months disqualification from holding a licence.
As I indicated in argument with Mr Sabharwal, I sit in this court not in order to review the sentence that was imposed by the Magistrate with a view to determining whether I consider it to have been the appropriate sentence but, instead, my duty is to determine whether there was an error which infected the decision of the Magistrate. I may only interfere with the sentencing discretion of the Magistrate if it is established that the Magistrate made an error either of law or fact in the course of sentencing or, alternatively, that the Magistrate imposed a sentence which was manifestly excessive.
Mr Sabharwal has, and I think quite correctly, abandoned any suggestion that the sentence imposed by the Magistrate was manifestly excessive. I can find no error either of law or fact in the sentence imposed by the Magistrate which would give me any right to interfere with her Honour’s sentencing discretion.
Accordingly, the appeal will be dismissed and the orders made by the Magistrate will be confirmed.
I will direct that the Disqualification Order will take effect from today but I will note that the appellant has already served seven days of the disqualification imposed by the Magistrate prior to her licence being returned to her after the commencement of this appeal, such that that period should now be deducted from the period commencing today which remains of the Disqualification Order that was made by the learned Magistrate.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate: James Middleton
Date: 18 January 2013
Counsel for the appellant: Mr J Sabharwal
Solicitor for the appellant: Mr T Sharman
Counsel for the respondent: Mr Lundy
Solicitor for the respondent: Office of ACT Director of Public Prosecutions
Date of hearing: 18 December 2012
Date of judgment: 18 December 2012
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