Smith v Pritchard

[2003] WASCA 6

SMITH -v- PRITCHARD [2003] WASCA 6

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 6
Case No:	SJA:1061/2002	Heard:	16 OCTOBER 2002
Coram:	EM HEENAN J	Delivered:	29/01/03
No of pages:	15	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	RODNEY ALEXANDER SMITH GEOFFREY OWEN PRITCHARD
Catchwords:	Road traffic Conviction for driving under the influence Sentence of 15 months' imprisonment Appeal against sentence Need to consider suspended sentence Suspended sentence for 4 months' imprisonment substituted Appeal allowed and appellant discharged from imprisonment
Legislation:	Road Traffic Act 1974 Sentencing Act 1995
Case References:	Baker v Bushell (1988) 7 MVR 142 Dinsdale v The Queen (2000) 202 CLR 321 Herps v Douglas (1991) 13 MVR 568 House v The King (1936) 55 CLR 499 Khan v Yates (1995) 22 MVR 436 Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998 Marshall v Spent [2000] WASCA 114 O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 Parfitt v Van Aken, unreported; SCt of WA; Library No 960122; 6 March 1996 Police v Cadd & Ors (1997) 69 SASR 150 R v Liddington (1997) 18 WAR 394 R v Tait (1979) 46 FLR 386 Veen v R (No 2) (1988) 164 CLR 465 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SMITH -v- PRITCHARD [2003] WASCA 6 CORAM : EM HEENAN J HEARD : 16 OCTOBER 2002 DELIVERED : 29 JANUARY 2003 FILE NO/S : SJA 1061 of 2002 BETWEEN : RODNEY ALEXANDER SMITH

Appellant

AND

GEOFFREY OWEN PRITCHARD
Respondent

Catchwords:

Road traffic - Conviction for driving under the influence - Sentence of 15 months' imprisonment - Appeal against sentence - Need to consider suspended sentence - Suspended sentence for 4 months' imprisonment substituted - Appeal allowed and appellant discharged from imprisonment

Legislation:

Road Traffic Act 1974

Sentencing Act 1995

Result:

Appeal allowed

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Category: B

Representation:

Counsel:

Appellant : Ms V Amidzic
Respondent : Ms L E Christian

Solicitors:

Appellant : Amidzic & Co
Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Baker v Bushell (1988) 7 MVR 142
Dinsdale v The Queen (2000) 202 CLR 321
Herps v Douglas (1991) 13 MVR 568
House v The King (1936) 55 CLR 499
Khan v Yates (1995) 22 MVR 436
Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998
Marshall v Spent [2000] WASCA 114
O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999
Parfitt v Van Aken, unreported; SCt of WA; Library No 960122; 6 March 1996
Police v Cadd & Ors (1997) 69 SASR 150
R v Liddington (1997) 18 WAR 394
R v Tait (1979) 46 FLR 386
Veen v R (No 2) (1988) 164 CLR 465

Case(s) also cited:

Nil

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1 EM HEENAN J: This is an appeal by leave granted by Scott J on 15 May 2002, against a sentence of imprisonment for 15 months with an order for eligibility for parole imposed upon Rodney Alexander Smith by his Worship Mr T G McIntyre SM in the Court of Petty Sessions at Armadale on 2 April 2002 for the offence of driving a motor vehicle whilst under the influence of alcohol so as to be incapable of having proper control of a vehicle contrary to s 63(1) of the Road Traffic Act 1974. Following this decision the appellant was imprisoned until 31 May 2002 when he was released on bail pending the determination of the appeal by order of McLure J of that day. It follows that the appellant has served 59 days, or nearly two months, of the sentence originally imposed, as well as an additional short period on remand.

2 The appellant was charged with four offences, all arising from events on the evening of Wednesday 27 February 2002. The charges were:

(a) that on 27 February 2002 at Forrestdale the appellant being the driver of a vehicle registered number 8NU 294 on a road, namely, Ranford Road and when called upon to stop his vehicle by a member of the police force refused to stop contrary to s 53(1)(b) of the Road Traffic Act 1974;

(b) that on 27 February 2002 at Forrestdale the appellant drove a vehicle, registered number 8NU 294, on a road, namely Ranford Road in a manner that was in the circumstances, dangerous to the public or to any person contrary to s 61(1) of the Road Traffic Act 1974;

(c) that on 27 February 2002 at Forrestdale the appellant being the holder of Extraordinary Licence No 3181360 issued pursuant to the provisions of s 76 of the Road Traffic Act 1974, such licence being issued subject to the compliance by the said Director General for Transport with conditions imposed by the Court and endorsed on such licence, drove a motor vehicle, registered number 8NU 294 on a road, namely, Anstey Road and failed to comply with the endorsed conditions of such licence contrary to s 77(1) of the Road Traffic Act 1974 and,

(d) that on 27 February 2002 at Forrestdale the appellant drove a motor vehicle registered number 8NU 294 on a road, namely Anstey Road whilst under the influence of

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alcohol, as to be incapable of having proper control of such vehicle contrary to s 63(1) of the Road Traffic Act 1974.

3 The appellant came before the learned Magistrate in the Armadale Court of Petty Sessions on 2 April 2002 represented by counsel. He pleaded guilty to all four charges. The facts were recited to the Court by the prosecutor and were not disputed. Submissions in mitigation were made by counsel for the appellant and thereafter the learned Magistrate imposed fines, cancellation of motor driver's licence and the sentence of imprisonment. The penalties and orders imposed in respect of the four offences were as follows:

(1) On the charge of failing to stop when called upon, a fine of $200.

(2) On the charge of dangerous driving, a fine of $200.

(3) On the charge of breaching the conditions of the Extraordinary Driver's Licence a fine of $200, and an order for the cancellation of the Extraordinary Driver's Licence.

(4) On the charge of driving under the influence, a sentence of imprisonment for 15 months with eligibility for parole, and an order for permanent disqualification from obtaining a driver's licence for life.

4 The facts of the offences are that at 11.30 pm on Wednesday 27 February 2002 the appellant drove in an easterly direction in Ranford Road near Anstey Road in Forestdale. Police who were travelling in the opposite direction noticed the appellant's vehicle weaving across Ranford Road. The police then checked the speed of the appellant's vehicle and found it to be travelling at 98 kmph in the 80 kmph zone. The appellant swerved sharply on several occasions causing dust clouds on the road shoulder. The police activated the emergency lights and turned around to head in the same direction as the appellant. The appellant's utility accelerated heavily to approximately 120 kmph. The police activated the siren and attempted to catch up to the utility. It swerved sharply to the left, driving along the shoulder for a short time and narrowly missing bushes on the side of the road. The appellant then turned right onto Anstey Road in Forestdale, having to brake heavily and come to a stop at 292 Anstey Road - his place of abode. The appellant alighted from his vehicle and ran away on foot in a southerly direction before being

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apprehended by the police. Upon being apprehended, the appellant's vehicle was searched and an extraordinary licence plate was located. On being questioned with regard to the extraordinary licence plate, the appellant admitted that he was the holder of an extraordinary driver's licence issued to him by a court after a life suspension. The conditions on the extraordinary licence included obligations to drive only between 7 am and 7 pm, not to drive with a blood alcohol equal to or exceeding 0.02 per cent and to display his extraordinary licence plates. A blood alcohol concentration reading, derived from a breathalyser test, and corrected for the time of driving was 0.183 per cent.

5 The appellant was born on 28 May 1965 and was, therefore, aged over 36 years at the date of these offences. He was then employed in the building trade. This employment was lost when the appellant was imprisoned but, following his release on bail, he has obtained a full-time position as a ceiling fixer for a company engaged in various construction projects. He has a stable de facto relationship with his partner which has now continued for over eight years. The couple have the full-time care of his partner's daughter and, in addition, have weekend contact with the appellant's 11-year-old daughter of a previous relationship. The appellant has had a long association with the Gosnells Football and Sports Club and assisted in the coaching of the Reserves team and in assisting the Colts players. On the afternoon of the day when the offences were committed, the appellant had driven direct from his work to the football club. Not long before he had injured or dislocated his shoulder. He remained after training at the football club, obviously drinking, and left to drive home some time after 11 pm - well outside the permitted hours and scope of his extraordinary driver's licence. He underwent surgery whilst in custody for the shoulder condition and because of this he was moved to Casuarina Prison, a maximum security prison, because of his need for medical attention and post-operative care, although he was classified as a minimum security prisoner.

6 The learned Magistrate took a grave view of the appellant's conduct and the significance of the offences, largely it seems because of the appellant's previous record. The police record, which is in evidence on this appeal, discloses a series of summary offences dating back to 1983, but in this present context it is prior convictions for drink associated driving offences which are material as the learned Magistrate recognised. The appellant's history of such offences is as follows:

16 July 1986 - driving under the influence -
first offence MDL disqualified for six months fined $500

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14 February 1990 - driving under the influence -
motor driver's licence disqualified and cancelled
for a period of two years fined $1000

20 November 1991 - contravening the provisions
of an extraordinary driver's licence fined $100

6 February 1992 - contravening the terms of an
extraordinary driver's licence -
extraordinary driver's licence cancelled fined $500

17 April 1997 - refusing a breath test -
motor driver's licence cancelled and disqualified
for life fined $1,200

10 August 1997 - contravening the terms of an
extraordinary driver's licence -
extraordinary driver's licence cancelled

10 August 1997 - driving with a blood alcohol
level in excess of 0.05% but less than 0.06% fined $200

7 From the foregoing it is evident that the appellant, following earlier disqualifications and cancellations of his motor driver's licence, obtained an extraordinary driver's licence upon application to the court on several occasions. The record shows that an extraordinary driver's licence was issued on 13 February 1991, again on 7 April 1999 and once more on 19 April 2001. There are other convictions for disorderly conduct and like offences which seem to suggest that the appellant may have been adversely affected by drink at the time but there was no direct evidence or explanation given about any of these. However, through his counsel the appellant admitted that he had for some time had a problem with alcoholism and that this had affected his relationship with his partner. By the time he came before the Court of Petty Sessions at Armadale on these charges he had sought professional assistance for his alcohol abuse from his general medical practitioner and from a psychologist who is the project co-ordinator for the Drug Awareness and Relief Movement at Armadale. Written references from these two sources, which were before the learned Magistrate, were to the effect that the appellant was receiving counselling and specific medication which made it likely that he would have success in addressing his alcohol abuse.
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8 In sentencing the appellant, the learned Magistrate concentrated at length on his previous record of drink driving or drink associated driving offences, including the three offences for breaching the terms of an extraordinary driver's licence which had been granted. His Worship went on to say:

"So this is the fourth occasion on which you have been convicted of driving under the influence of alcohol or a similar offence. It's the second time you have been involved in committing an alcohol-related offence after you were permanently disqualified for drink-related driving offences. And this offence clearly shows a total lack of regard [by] you, for the law or for the rights and safety of other people."

After stressing the seriousness of the risks created to the public by persons who drive when significantly affected by alcohol, and the high incidence of death and associated tragedy arising from the road toll, his Worship went on to say:

"And in my view there is only one sentence which is appropriate and that is a sentence of imprisonment because, as I say, you've shown a gross disregard for the rights and safety of other people. You're fined $200 for refusing to stop; $200 for dangerous driving; $200 for breaching the extraordinary driver's licence. The extraordinary driver's licence is cancelled. You are again permanently disqualified from obtaining a driver's licence.

The only protection which is available for members of the community is to disqualify you from holding a licence. You've proven by your own behaviour in the past you've got little regard for the law. There will be a sentence of imprisonment imposed which in my view reflects the very serious nature of the incident that I am dealing with. You are sentenced to 15 months' imprisonment for drunken driving. You will be eligible for parole. That's all. Take your place over there."


The appellant had not ever been sentenced to imprisonment before. During the course of submissions in mitigation to the learned Magistrate, counsel for the appellant submitted that the court should consider as one option for the disposition of the case, the imposition of a suspended sentence of imprisonment but, in response, the learned Magistrate observed that all that a suspended sentence of imprisonment requires people to do is not to break the law which is an obligation that most

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people in the community assume quite readily. When actually passing the sentence upon the appellant and explaining the basis upon which the sentencing decision was approached and the options considered, no mention was made by the learned Magistrate of the potential use of a suspended sentence or why it might be unsuitable. In the context of this case it is evident that the learned Magistrate adopted, at best, a dismissive attitude to the possibility of a suspended sentence notwithstanding a clear legislative requirement in s 39(3) of the Sentencing Act that obliged the Court to give it full consideration. Counsel for the appellant also submitted, both before the learned Magistrate and again at the hearing of the appeal, that the appellant should be entitled to some recognition of the fact that he pleaded guilty to all charges at the earliest opportunity.

9 The grounds of the appeal for which leave was granted are as follows:

(a) the learned Magistrate imposed a sentence that was excessive in the circumstances;

(b) the learned Magistrate had little or no regard to matters put by way of mitigation; and

(c) the learned Magistrate gave no weight to documentary material tendered on behalf of the applicant (appellant).

10 In elaboration of these grounds, counsel for the appellant submitted that by declaring that in his view there was only one sentence which was appropriate in this case, namely a sentence of imprisonment, the learned Magistrate failed to address and consider the option of a suspended sentence as he should have done. Further, in support of the appeal, counsel has submitted that the penalty imposed is not only the most serious option, namely imprisonment, but close to the maximum term for the particular offence - Road Traffic Act, s 63(2)(c). Emphasis was placed in the submissions on the fact that a period of four years had elapsed between the appellant's first and second convictions for driving under the influence and a further 12 years between the second and third of these convictions. It was argued that while by February 1990 the appellant had a long-standing but unrecognised problem with alcohol abuse, he was not an habitual offender and that his history of driving convictions needs to be examined on the basis that it is spread over a period of some 16 years. Associated submissions advanced in support of the appeal were that the learned sentencing Magistrate was dismissive of matters put by way of mitigation, having arguably reached an a priori view that the only appropriate sentence was one of immediate imprisonment and,

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consequently, so failed to pay any or any sufficient regard to the evidence from the general medical practitioner and the psychologist that the appellant had reached a point of realisation of his alcoholism and had taken appropriate steps to bring this under control with the assistance of others.

11 It is well established that an appellate court should not interfere with a sentence imposed merely because it may be of the view that the sentence is excessive. Variation of the sentence is only justified if the Court is satisfied that in passing sentence the Court or Magistrate acted in error or on a wrong principle or upon a misunderstanding or in wrongly assessing some material feature of the evidence - R v Tait (1979) 46 FLR 386 at 388 and House v The King (1936) 55 CLR 499 at 504 - 505. These authorities have often been cited and in Parfitt v Van Aken, unreported; SCt of WA; Library No 960122; 6 March 1996 Steytler J cited with approval the following passage from Cranssen v The King (1956) 55 CLR 509 which had been cited in R v Tait (supra):

"There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effect may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this Court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the Court's authority."

12 These considerations immediately direct attention to three aspects of this case which I consider merit examination. These are the significance placed by the learned Magistrate on the appellant's previous convictions; a consideration of whether or not the appellant would be adequately punished and the public protected by some penalty other than

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imprisonment, in particular by the life disqualification from holding a driver's licence; and the paucity of attention given to the possibility of a suspended sentence. Counsel for the appellant also argued that, even if a sentence of imprisonment were to be regarded as inevitable, a term of 15 months in this case was manifestly excessive.

13 Counsel for the respondent readily accepted that while it is appropriate for a court to consider the conduct of the offender at the time in question in the light of the offence being a third conviction for driving whilst under the influence, it is nevertheless not appropriate to look at the offender's record in determining what is the appropriate starting point for the penalty - Khan v Yates (1995) 22 MVR 436 at 437. It has been long established that while the antecedent criminal history of an offender must be taken into account in determining the sentence to be imposed, it should not be given such weight as to result in a penalty which is disproportionate to the gravity of the instant offence or offences. The basis for this was explained in Veen v R (No 2) (1988) 164 CLR 465 at 477 - 478 in the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ, as follows:

"There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: DPP v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."

14 To my mind, the learned Magistrate in this case concentrated almost entirely upon the significance of the appellant's past record of drink driving offences and in the result proceeded to a conclusion that the appellant was quite irresponsible and reckless in regard to his treatment of the traffic laws to such an extent that he was a menace to the public while on the road. Several things can be said about this. First, the appellant's record while grave, was spread over a period of 16 years with lengthy periods between individual offences. He had, in the past, succeeded in

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persuading several courts that his particular circumstances justified the trust of being granted an extraordinary driver's licence. Although he committed subsequent offences resulting in the loss of the extraordinary driver's licence on three occasions, it is also evident that he held an EDL for significant periods without being convicted of breaches. This seems to be consistent with the submission put by the appellant's counsel that for many years he has had an unrecognised, or insufficiently recognised, problem with alcoholism which periodically escapes control - a not infrequent pattern of behaviour for persons who are struggling with unrecognised or partially controlled alcoholism.

15 On the credit side of his character the appellant is able to point to the fact that he has been in consistent employment, in a stable relationship and has provided financially for himself, his partner and has contributed to the upkeep of two children over many years. By no means could he be classified as completely socially dysfunctional, notwithstanding his significant record of offences. This appreciation leads to another conclusion, namely, that there may well be a basis for the optimism expressed by the general medical practitioner and the psychologist about the prospects of successfully controlling the tendency towards alcohol abuse now that a frank recognition of it has been achieved.

16 The next point of importance emerging from this history is that if the appellant is actually, or potentially, an unacceptable risk or threat to the public because of his behaviour when driving a motor vehicle, the most obvious means of eliminating that risk is to prevent him from driving at all. Quite obviously the order for a lifetime disqualification from holding a driver's licence is a powerful preventive remedy in this regard. It is also a very substantial penalty in itself. This is not to say that in cases of repeated drink driving offences, a sentence of imprisonment is never appropriate or that only long disqualifications of eligibility to hold a motor driver's licence are justified by way of penalty. There are many examples of convictions for driving under the influence, where there have been previous similar offences, but whether imprisonment is warranted will always depend on the facts of the particular case. A spectrum of dispositions ranging from penalties without imprisonment to penalties including imprisonment can be seen in cases such as Baker v Bushell (1988) 7 MVR 142 and Khan v Yates (supra). In Baker v Bushell two offences of driving under the influence were committed on successive days and resulted in penalties of fines and licence disqualifications without imprisonment. On appeal by the offender the amounts of the fines and the length of the disqualifications were reduced by Franklyn J. That case was cited with approval by Owen J in Herps v Douglas (1991)

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13 MVR 568. In Khan v Yates (supra) the appellant had eleven prior convictions for driving under the influence, and two prior convictions for driving with a blood alcohol content in excess of 0.08 per cent. He had been sentenced to a period of imprisonment previously for one of his DUI convictions. He was sentenced to 18 months' imprisonment for his twelfth DUI conviction and on appeal that sentence was reduced to 9 months' imprisonment by order of Scott J. While none of these other instances is determinative of the present case, the range of dispositions nevertheless demonstrates that no automatic conclusion that a term of imprisonment is inescapable on a third or fourth drink driving offence can be justified. There must always be a proper consideration of the alternatives in the context of the facts of the particular case.

17 The learned Magistrate in this case appears to have reached the conclusion that the appellant's breaches of the terms of the extraordinary driver's licences which had been granted to him on previous occasions meant only that he was defiant or reckless in his attitude towards his legal obligations. In many ways his Worship's disposition of this case resembles the manner in which the courts will generally deal with repeated offences for driving whilst under suspension or when disqualified. Indeed, one of the cases cited by the respondent, Marshall v Spent [2000] WASCA 114, is a case involving repeated driving under suspension. As explained by Miller J in Marshall v Spent (supra), there is a general tendency to impose imprisonment in cases of conviction for driving whilst under suspension because of the flagrant defiance of the law which the offence entails, although that is not necessarily or inescapably always so - see O'Brien v Ritchie, unreported; SCt of WA; Library No 990123; 17 March 1999 and Police v Cadd & Ors (1997) 69 SASR 150 per Doyle CJ at 167 - 168. In these circumstances it needs to be emphasised that this appellant was not charged with driving whilst under suspension or when disqualified and had never been convicted of such an offence.

18 At one time there was difference of view over whether a suspended sentence under s 39(2) of the Sentencing Act 1995 was primarily for the purpose of rehabilitation of the offender or whether other criteria might be considered, such as other mitigating circumstances or reasons militating in favour of an exercise of mercy - see R v Liddington (1997) 18 WAR 394 per Steytler J at 406 and Krakouer v Durka, unreported; SCt of WA; Library No 980595; 14 October 1998 per Miller J. This has now been authoritatively resolved by the decision of Dinsdale v The Queen (2000) 202 CLR 321 where it has been decided that the discretion to impose a term of suspended imprisonment conferred by s 39(2) and s 76 of the

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Sentencing Act requires consideration of all the circumstances of the case, not only rehabilitation of the offender. In that case Gleeson CJ and Hayne J concluded that s 39(2) authorises the imposition of a term of actual imprisonment only if the Court is satisfied that it is inappropriate to impose a term of suspended imprisonment, while Kirby J concluded that under s 76, the first step for a sentencing Judge is to determine that a sentence of imprisonment is called for and the second step is to determine whether that sentence should be suspended for a period set by the Court. Either way, it is clear that if an actual term of imprisonment is to be imposed, full consideration of other alternatives including the possible suitability of the use of a suspended sentence must be undertaken.

19 In my opinion the sentencing discretion of the learned Magistrate in this case miscarried and was affected by error. For the reasons which I have given, I consider that a disproportionate emphasis was placed on the appellant's previous offences, to the detriment, indeed the absence, of an evaluation of his conduct which constituted the particular offence. An examination of the facts should have noted that, while the appellant had a high blood alcohol reading, had been driving erratically and dangerously, and had attempted to evade the police, he had not been involved in any accident or injury. No reason had been suggested to doubt that the menace which he presented to the public by the risk of future drink driving could be adequately eliminated by a lifetime suspension and order for disqualification from holding a licence as was, in fact, imposed. I also accept the associated submission made on behalf of the appellant that the learned Magistrate failed to give any adequate consideration to the evidence from the general medical practitioner and the psychologist about the favourable prospects of achieving control over the appellant's alcoholism in the light of the treatment and counselling regimes which had, by then, been instituted. Most significantly of all, the failure by the learned Magistrate to give any real consideration to the suitability of the imposition of a suspended sentence appears, with all respect, to be an unmistakeable error in the sentencing process for the reasons which are explained in Dinsdale v The Queen (supra), especially by Gleeson CJ and Hayne J at [13] to [15] and by Kirby J at [74] to [83].

20 It follows that the appellant has established that errors of principle have occurred in the exercise of the sentencing discretion by the learned Magistrate in this case and that, as a result, this Court can, and must, determine the penalty which should be imposed upon the appellant's conviction for the offence under s 63(2)(c) of the Road Traffic Act. The range of penalties is a fine of not less than $2000 or more than $5000 or imprisonment for 18 months and, in any event, the court convicting the

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person shall order that he be permanently disqualified from holding or obtaining a driver's licence.

21 In the circumstances of this case, if the appellant were coming up for sentence for the first time, I would have been inclined to impose a fine of $3000 and the mandatory lifetime disqualification from a motor driver's licence. In this particular case, in the light of the appellant's recognition of his alcoholism, notwithstanding that it is a belated recognition, that would have seemed to me to be a penalty which would, because of its financial severity, impose a real burden on the appellant and remove him as a driver on the roads as a potential risk to the public. I do not consider that a court would be justified in imposing a more serious penalty solely on the basis that, there was a risk that the appellant might in the future drive whilst under suspension. If he were to do that, he would be committing a very serious offence which would project the offender into a position where the risk of imprisonment was very considerably greater, but that consequence should not simply be assumed. That disposition would have appeared to me to have been preferable than a suspended period of imprisonment because, in this case, the period of imprisonment which would appear to be apposite would be in the order of 3 to 4 months. Section 86 of the Sentencing Act forbids a court to sentence an offender to a term of 3 months or less, except in circumstances which do not apply in this case. That situation gives added emphasis to the directive contained in s 39(3) that a court must not use a sentencing option contained in s 39(2) unless satisfied - that it is not appropriate to use any of the options listed before that option - see also s 42, thus leading to the imposition of a fine, the mandatory suspension and disqualification of the motor driver's licence, followed by the release of the offender.

22 However, counsel for the appellant, both before the learned Magistrate and on this appeal, accepted that a term of imprisonment was open in the exercise of the sentencing discretion on the facts of this case. This concession which I accept was correctly made in these circumstances was clearly made on the basis that consideration of the suspension of any such sentence would still be obligatory. Accordingly, the option of a suspended sentence was therefore open in this case and it remains open. At this point the Court should not overlook the fact that the appellant has already served 59 days in prison under the sentence imposed by the Court of Petty Sessions, in addition to some additional time spent in custody on remand following his arrest. Accordingly, to quash the sentence of imprisonment and to substitute a fine as required by s 63(2)(c) of the Road Traffic Act and s 39(2)(c) and s 42 of the Sentencing Act, would result, in effect, in the appellant having served a significant period in prison already

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and, in addition, being fined substantially. Accordingly, notwithstanding my reservations about its suitability as a disposition of first choice, I consider that the Court should now impose a term of imprisonment for 4 months commencing from 2 April 2002, but order that the whole of that term be suspended for a period of 6 months following the sentence and conviction which, for present purposes, must be regarded as occurring on 2 April 2002. In addition, the appellant should be permanently disqualified from holding or obtaining a driver's licence.

23 In the result, therefore, this appeal will be allowed. The sentence of imprisonment of 15 months on the appellant imposed by the Court of Petty Sessions on 2 April 2002 and the order that the appellant be permanently disqualified from holding or obtaining a driver's licence will be set aside. In lieu thereof, it is ordered that the appellant be sentenced to a term of 4 months' imprisonment commencing on 2 April 2002, but that this sentence shall be suspended for a period of 6 months from the date of the imposition of the original sentence, namely 2 April 2002, and it is also ordered that the appellant be permanently disqualified from holding or obtaining a driver's licence. As the six months period of suspension of this sentence following 2 April 2002 has now expired, the appellant is to be taken to be discharged from the sentence at the end of that period - Sentencing Act, s 78(5). It follows that the appellant is entitled to be released under the provisions of s 203(2) of the Justices Act.

24 I shall hear counsel to consider whether any special orders or directions are necessary to give effect to this decision.