Smorhun v Devine [No. 2]
[2014] ACTSC 302
•14 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Smorhun v Devine [No. 2] |
Citation: | [2014] ACTSC 302 |
Hearing Date: | 14 October 2014 |
DecisionDate: | 14 October 2014 |
Before: | Penfold J |
Decision: | See [21] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be re-sentenced for drink-driving and two other traffic offences after successful Crown appeal – offender disqualified from driving for total of two years and fined total of $2,031. |
Legislation Cited: | Magistrates Court Act 1930 (ACT), Divisions 3.10.2, 3.10.3; s 216 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 35(2), 35(3) |
Cases Cited: | Mwauluka v Turkich [2013] ACTSC 1 Newham v Cogle [2012] ACTSC 76 Smorhun v Devine [2014] ACTSC 208 |
Parties: | Luke Daniel Smorhun (Appellant) Emily Catherine Devine (Respondent) |
Representation: | Counsel Mr S McLaughlin (Appellant) Ms K Bills (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Aboriginal Legal Service (NSW/ACT) (Respondent) | |
File Number: | SCA 41 of 2013 |
On 29 August this year I handed down a decision (Smorhun v Devine [2014] ACTSC 208), in a Crown appeal against the sentencing of Emily Devine for three offences. Those offences and sentences were as follows:
(a)first, that as a repeat offender she drove with a level 4 blood alcohol reading (specifically a reading of 0.189), for which she received a fine of $550, a six-month good behaviour order, and a licence disqualification for two years;
(b)second, disobeying a “Left Turn Only” sign, for which she was fined $200; and
(c)thirdly exceeding the speed limit by more than 30 and no more than 45 kph, for which she was fined $250.
The decision was that the sentencing had been infected by error on the part of the sentencing Magistrate, and that other sentences were appropriate. Accordingly, the matter was adjourned for re-sentencing and a Pre-Sentence Report was ordered.
The circumstances of the offences were described in the published judgment, and need not be set out in detail. In summary, Ms Devine, who was seriously intoxicated, decided to drive her car home from Oktoberfest after having been unable to afford a taxi because her friends had gone home with her key card, and having been frightened by a man who attempted to induce her to walk home with him. She was stopped by police, who first observed her turning onto Northbourne Avenue against a “Left Turn Only” sign, and then followed her travelling along Northbourne Avenue, a road with a speed limit of 60 kph, at an estimated speed of 99 kph. A breath test produced the blood alcohol reading I have already mentioned.
The fines for the three offences imposed in the Magistrates Court totalled the $1,000 that had been recommended by the panel during the Galambany Court sentencing process. These compared with the maximum available penalties of fines of $2,200 for each of the three offences, as well as a term of imprisonment for the drink‑driving offence. In the Magistrates Court there had been discussion to the effect that the fines for the two less serious offences could appropriately have reflected the maximum fines able to be imposed by traffic infringement notices, being $664 for the speeding offence and $167 for the disobeying “Left Turn Only” sign. In my decision on the appeal, I concluded that the sentences ultimately imposed were “inappropriately low and that different sentences should be imposed”.
The offences were quite serious examples of their kind, given their capacity to endanger other road users on one of Canberra's busiest roads at a relatively busy time.
I can understand how, in the circumstances described, Ms Devine made the foolish decision to drive despite being intoxicated, but note that this would not have been any consolation to anyone endangered by her driving. I note Ms Devine's two previous drink-driving offences, and that they were committed in 2003 and 2004, nine and eight years before the current offences, and when Ms Devine was only 19 or so, and I also note the prosecutor's agreement in the Magistrates Court that Ms Devine had indicated remorse by early guilty pleas.
An updated Pre-Sentence Report is in evidence. It reports as follows:
Following her conviction and initial sentencing for these offences, Ms Devine reported for probation supervision during the period 12 June to 22 August 2013. Service records indicate Ms Devine's attendance to appointments and compliance with supervision requirements were satisfactory.
Ms Devine reported she resides with her younger sister in a privately owned property. She stated she enjoys positive relationships with both her parents and her three siblings.
...
Corroborated by her sister, Ms Devine reported that she does not associate with persons known to the criminal justice system or those who may potentially be negative influences on her lifestyle.
...
Ms Devine advises she spends much of her free time actively involved in pro-social community and sporting related activities. This information was confirmed by Ms Devine's sister.
...
Ms Devine did not dispute the police statement of facts and demonstrated a commendable level of insight into her offending behaviour. She acknowledged the serious nature of the offences and the risk she posed to herself and other road users. Additionally Ms Devine stated she understands that her sentence may be viewed as lenient by the community and is willing to accept the Court's decision.
As stated in the earlier Pre-sentence Report, Ms Devine appears to lead a generally pro-social lifestyle with few significant risk factors. According to her sister, she has addressed her alcohol misuse and has no association with anti-social persons and/or activities. Information obtained from Directions ACT and Karralika Programs Inc. confirms Ms Devine has undertaken relevant interventions, which appear to have assisted her with her rehabilitative endeavours.
At present Ms Devine is assessed as being at low risk of reoffending.
Ms Devine has been employed in the public service for four years. She has a mortgage but no other significant debts or financial problems. I understand she earns about $70,000 per year and would be able to meet a fine.
The updated Pre-Sentence Report confirms that Ms Devine has taken part in alcohol and other drug counselling through Directions ACT and a drink-driving course offered by Karralika in 2013, and notes that Ms Devine's claim that she has not used alcohol since 2012 was confirmed by her sister.
10. I understand that apart from her sporting activities, much of Ms Devine's free time is spent in helping her mother care for Ms Devine's grandmother, who suffers from dementia. Her family also runs a catering business, and in due course Ms Devine would like to be able to help in the delivery of food to catered functions.
11. Apart from the fines already mentioned, Ms Devine was disqualified from driving for two years. Three months of that is, under s 35(2) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT), set off by the three-month suspension of her licence from the date of the offences, and the prosecution does not dispute Ms Devine's claim not to have driven since the offence, a period of nearly two years.
12. For the purposes of s 35(3) of the Road Transport (Alcohol and Drugs) Act, I record that s 35(2) is applicable in this case.
13. The prosecution appeal, a review appeal under Division 3.10.3 of the Magistrates Court Act 1930 (ACT), was not covered by s 216 of the Magistrates Court Act, which stays a Magistrates Court decision appealed to the Supreme Court under Division 3.10.2 of the Magistrates Court Act. Accordingly, Ms Devine's disqualification, which began on conviction on 12 June 2013, continued during the period of this appeal, and she has therefore already served about 19 months of it, being the three-month suspension from 3 November 2012 plus the roughly 16 months since 12 June 2013.
14. If that disqualification period was simply confirmed it would expire, effectively, on 11 March 2015, representing two years from 12 June 2013, reduced by the three-month suspension period. However, I understand that the appellant also accepts Ms Devine's claim not to have driven between 3 February 2013 when the suspension would have expired and 12 June 2013 when she was convicted, a further period of four months and nine days. I cannot backdate the disqualification, but I could reduce the total period to take account of this abstinence from driving.
15. As to the setting of the disqualification period, I note the approach adopted in a number of previous decisions of various judges of this court, including myself, to the effect that, in Refshauge J's words in Newham v Cogle [2012] ACTSC 76 at [46], in considering what to do about disqualification from driving:
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, it is necessary to penalise the offender and protect the public.
16. See also Piper v Hall [2013] ACTSC 76; Mwauluka v Turkich [2013] ACTSC 1, and cases cited therein.
17. In this case the reasons for departing from the default five-year disqualification applicable to this offence are Ms Devine's relative youth, the significant rehabilitation she appears to have achieved in the time since this offence was committed, and the extra support she will be able to provide to her family when she regains her licence. Noting also that the length of the disqualification period was not specifically challenged in the Crown appeal, it seems to me that the original two-year disqualification period imposed in the Magistrates Court would be appropriate.
18. As noted, however, I propose to reduce it further to recognise Ms Devine's abstinence from driving between the expiry of the suspension notice and her original sentencing. Accordingly, the disqualification period that I shall impose will be 20 months, which has run from 12 June 2013 and would expire on 11 February 2015, except that it will be reduced under s 35(2) of the Road Transport (Drugs and Alcohol) Act to take account of the three months already served during the term of the suspension notice. That means that the disqualification period will effectively end on 11 November this year.
19. Ms Devine, please stand.
20. I note the convictions recorded in the Magistrates Court on 12 June 2013 on charges as follows:
(a)as a repeat offender driving with a level 4 blood-alcohol reading;
(b)disobeying a “Left Turn Only” sign; and
(c)exceeding the speed limit by more than 30 and no more than 45 kilometres per hour.
21. I now sentence you for those offences as follows:
(a)for the drink-driving offence, I impose a fine of $1,200 and confirm the disqualification from driving that commenced on 12 June 2013. That disqualification is now to run for 20 months, subject to s 35(2) of the Road Transport (Alcohol and Drugs) Act;
(b)for disobeying a “Left Turn Only” sign, I impose a fine of $167; and
(c)for speeding, I impose a fine of $664.
22. That, by my calculations, is a total fine of $2,031, to be paid within six months.
23. For reasons already indicated, it seems unnecessary to impose a good behaviour order for a further period, given that you have subjected yourself to supervision as required by Corrective Services, and been of good behaviour for the last 20‑odd months now, perhaps a little longer than that.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
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