Tui v McLucas
[2024] ACTSC 164
•29 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Tui v McLucas |
Citation: | [2024] ACTSC 164 |
Hearing Date: | 29 April 2024, 16 May 2024, 24 May 2024 |
Decision Date: | 29 May 2024 |
Before: | Baker J |
Decision: | (1) The appeal is allowed in part. (2) The appeal against the conviction and sentence imposed in the Magistrate’s Court is dismissed. The good behaviour order previously imposed by the Magistrate is confirmed. (3) The appeal against the disqualification period is allowed. The appellant will be disqualified from driving for a period of 20 months, to date from today. |
Catchwords: | APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence imposed by Magistrates Court – error in Magistrate’s findings as to criminal history – error conceded by respondent – no lesser sentence appropriate in all of the circumstances – fine and good behaviour order confirmed. TRAFFIC LAW – Licensing of drivers – driving with prescribed concentration of alcohol – repeat offender – nature of default disqualification period – Court to undertake assessment of appropriate disqualification period in light of relevant sentencing purposes – legislative reduction of default disqualification period whilst appeal pending - disqualification period reduced. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 33(1) Criminal Appeal Act 1912 (NSW), s 6(3) Legislation Act 2001 (ACT), s 84A Magistrates Court Act 1930 (ACT), ss 208, 216, 218 Road Safety Legislation Amendment Act 2024 (ACT) Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19(1), 33, 26 Road Transport (General) Act 1999 (ACT), ss 63(3)(c), 65 |
Cases Cited: | Ayres v Ford [2016] ACTSC 204 Barnes v Barratt [2018] ACTSC 295 Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 Clarkson v Earle [2016] ACTSC 331 Irving v Head [2016] ACTSC 37; 75 MVR 13 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Krewaz v Jordan [2012] ACTSC 84 Kristiansen v Yeats [2022] ACTSC 351 Shaw v Leach [2014] ACTSC 135 Milner v Bonde [2018] TASSC 42; 28 Tas R 62 Morrison v Maher [2021] ACTSC 312 Mwauluka v Turkich [2013] ACTSC 1 Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303; 61 NSWLR 305 R v Bonfield [2021] ACTSC 362 Senderowski v Mothersole [2013] ACTSC 217 Stoehr v Meyer [2016] ACTSC 144; 311 FLR 23 Tindall v Spalding [2014] ACTSC 253; 10 ACTLR 198 |
Texts Cited: | Explanatory Statement to the Road Transport Legislation Amendment Bill 2015 (No 2) (ACT) Explanatory Statement to the Road Safety Legislation Amendment Bill 2023 (ACT) |
Parties: | Tsai Tui ( Appellant) Alison Leila McLucas ( Respondent) |
Representation: | Counsel T Sharman ( Appellant) D Armstrong ( Respondent) |
| Solicitors Tim Sharman Solicitors ( Appellant) ACT DPP ( Respondent) | |
File Number: | SCA 62 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 22 November 2023 Case Title: The Police v Tsai Tui Charge Number(s): CAN9582 of 2023 |
BAKER J:
Introduction
The appellant, Tsai Tui, pleaded guilty in the Magistrates Court to a charge of driving with a prescribed concentration of alcohol in breath, as a special driver, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (“Alcohol and Drugs Act”). At the time of the offending, the offence carried a maximum penalty of 6 months’ imprisonment and a fine of $1,600: s 26 of the Alcohol and Drugs Act.
The appellant was sentenced as a repeat offender of drive motor vehicle with alcohol in breath, level 3, as a special driver subject to a Learner’s Licence. The appellant entered into a good behaviour order for a period of 18 months and was fined $800. As no order was made in relation to the disqualification of the appellant’s licence, the default disqualification for a driver of three years’ disqualification applied: s 33 of the Alcohol and Drugs Act.
By way of a Notice of Appeal filed 24 November 2023, the appellant appeals from this sentence, on the single ground that the Magistrate erred by sentencing him on the basis that he had previously committed three drink driving offences. The appellant in fact had two prior drink driving offences, one of which was committed in the ACT and one in New South Wales.
Whilst acknowledging that the error was understandable, as the matter was being dealt with in the context of a busy Magistrate’s list, and neither party corrected the Magistrate at the time that the finding was made, the Director nonetheless conceded that the Magistrate had erred by taking into account a higher number of previous convictions, and that her Honour’s erroneous finding had the capacity to affect the sentence that was imposed. I agree with this concession.
The Director further accepted that, error having been established, this Court must resentence the appellant: see Kentwell v The Queen [2014] HCA 37; 252 CLR 601; Kristiansen v Yeats [2022] ACTSC 351 at [67]-[71]. I agree. The misreading of the appellant’s criminal history is a factual error, which had bearing on the “instinctive synthesis” of how the Magistrate reached the finding of the appropriate sentence to be imposed. Accordingly, I am required to independently re-exercise my discretion as to the appropriate sentence for the offence.
As outlined further below, whilst the present appeal was pending, the default disqualification period that applied to the offending was reduced from three years to two years by the Road Safety Legislation Amendment Act 2024 (ACT). The assessment of the appropriate disqualification period on resentence is to be conducted against the now reduced disqualification period: s 84A of the Legislation Act 2001 (ACT).
Resentence
The offending
At about 6:35pm on 30 August 2023, ACT Police were dispatched to a carpark outside the Uniting Church in Melba. The police arrived at around 6:52pm, and observed three males standing in between two parked vehicles. One of those males was later identified as the appellant.
The police approached the three males and asked them what they were doing. The men responded that they were having farewell drinks for a friend. Police observed several empty glass beer bottles on the grass beside the vehicles. Police asked how the three men were planning on getting home, and they stated their respective partners would pick them up. Police advised the men that they were prohibited from driving under the influence of alcohol. The men responded they were getting picked up “shortly”.
At approximately 7:37pm the same night, police observed the same vehicle that was parked in the car park travelling eastbound along a street in Melba. The police followed the car and activated their siren, causing the car to stop. Upon approaching the vehicle, police identified the two men in the car as the men in the car park outside the Uniting Church they had spoken to earlier that night.
Police conducted a roadside alcohol screening test on the appellant, who was driving and held an ACT Learner’s Licence. The test result returned positive. A further alcohol screening test was conducted on the appellant’s friend, who was the licenced supervising driver accompanying the appellant. The appellant’s friend also returned a positive test.
Both the appellant and his friend were taken into custody. Police observed the appellant to be moderately intoxicated and noticed a moderate smell of liquor on his breath.
At about 9:01pm, the appellant provided a sample of his breath for analysis. The analysis returned a level 3 blood alcohol concentration level, at 0.09 grams of alcohol per 210 litres of breath. The appellant stated he had consumed six mid-strength beers over a period of three hours at the carpark.
ACT Police issued an Immediate Suspension Notice of the appellant’s licence.
The appellant’s subjective case
The appellant is a 36 year old man of Tongan descent, who moved to Australia in 2005 from New Zealand. He completed his year 10 studies at Erindale College and has been variously employed full time in concreting, in stone masonry, as a security officer, as a removalist, and in scaffolding, in which he has been employed in for the last five years.
The appellant tendered two character references, from Mr McSmith, the appellant’s employer at BAS Scaffolding, and Terry Campese, who the appellant met through football. In the first reference, Mr McSmith described the appellant as “reliable, punctual and a very hardworking employee”, who has been “a great role model for [the company’s] young scaffolders moving up”. He stated the appellant “feels he has let down his family and me as his employer” by his offending. Mr Campese is a former coach of the appellant’s football squad, who has known the appellant for 20 years. He described the appellant’s “great leadership on and off the field, especially with the younger Polynesian players”. Mr Campese stated the appellant “has expressed to [him] his shame and remorse at this thoughtless and immature behaviour”.
Criminal History
The appellant has both an ACT and NSW criminal record.
The appellant’s ACT criminal history involves a number of past driving offences. In 2016, the appellant was convicted of driving a motor vehicle while unlicenced. In 2012, he was convicted of driving a motor vehicle without consent and driving a motor vehicle while unlicenced. He also has convictions for contravening a direction by a member of ACT Police (in 2009), common assault (in 2007), failure to appear after a bail undertaking (in 2008) and resisting a Commonwealth public official (in 2006).
The appellant also has a criminal record in New South Wales, which includes convictions for destroying/damaging property, affray and driving while disqualified from holding a licence.
The appellant has two previous convictions for driving while intoxicated. In 2006, when the appellant was 19 years old, he was convicted in the ACT of driving under the influence of alcohol as a special driver (learner driver). The offender was fined $250 and his licence was disqualified for 6 months. In 2007, the appellant was convicted in NSW for driving with a mid-range PCA. The offender was fined $1,000 and he was disqualified from holding a licence for 2 years.
Consideration
The penalty to be imposed
At the time of the offending, an offence contrary to s 19(1) of the Alcohol and Drugs Act, when committed by a repeat offender, carried a maximum penalty of six months’ imprisonment and a fine of $1,600.[1]
[1] As discussed further below, the penalty and disqualification periods that applied to the offending were amended whilst the present appeal was pending. The maximum penalty for a level 3 offence contrary to s 19 committed by a repeat offender is now 100 penalty units ($16,000), imprisonment for 12 months or both. This increased penalty does not apply to the present appeal: s 84(2) of the Legislation Act.
I have taken into account the following matters in determining the nature and circumstances of the offending: see s 33(1)(a) of the Crimes (Sentencing) Act 2005 (ACT):
(a)The appellant was a ‘special driver’, subject to a Learner licence. He was not permitted to have any alcohol in his blood whilst driving. The appellant could not have been under any misapprehension as to whether his intoxication level was permitted;
(b)The appellant registered a concentration of 0.091, which places him within the level 3 range (which encompasses blood alcohol concentration levels of more than 0.08g and less than 0.15g);
(c)The appellant is a repeat offender for the purposes of the Alcohol and Drugs Act. He has a previous conviction in the ACT for the offence of special driver PCA in blood in 2006 and for a corresponding NSW offence in 2007;
(d)The appellant was reminded by police just over half an hour before being caught behind the wheel of a car that he should not drive as he had been drinking;
(e)The appellant did not drive out of necessity or in an emergency (when police told him not to drive, he said that his partner was coming to pick him up);
(f)The journey from the Uniting Church car park on Conley Drive in Melba to Verbrughhen street in Melba (where the police stopped the appellant) is 300 metres. (There is no evidence of the intended length of the journey); and
(g)The appellant had one passenger in his car when stopped by police. That passenger was the supervising driver (who was also affected by alcohol).
The appellant has a troubling driving history, which encompasses a number of breaches of the Road Rules. I have taken into account that the latest conviction concerned offending some eight years ago, in 2016. The offender was then 29 years old. He is now 36 years old. However, this gap in prior offending assumes less significance when one takes into account the circumstances of the offending, namely that the appellant was expressly warned about driving by police only half an hour before he committed the present offence. The sentence to be imposed must powerfully convey the criminality of his actions to the appellant.
The grave consequences associated with drink driving are well known. As Howie J held in Re Attorney-General’s Application (No 3 of 2002) (NSW) [2004] NSWCCA 303; 61 NSWLR 305 at [7]:
It is trite to observe that, what is commonly referred to as, “drink-driving” amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle. It must also be a matter of common knowledge within the public in general that it is a criminal offence to drive a motor vehicle whilst under the influence of alcohol and that substantial penalties, including imprisonment, are available to the courts to punish those who commit the offence. For many years there has been an extensive media campaign to stress the seriousness of such conduct and the consequences that flow from it, both so far as the offender is concerned and in terms of its impact upon the safety of members of the public on or about the highways. In addition, drivers of motor vehicles must be aware that the use of random breath testing since 1982 has increased the chances of detection and hence the likelihood of conviction, punishment and licence disqualification.
See also Krewaz v Jordan [2012] ACTSC 84 at [1] and Milner v Bonde [2018] TASSC 42; 28 Tas R 62 at [16].
The appellant’s character referees speak of the appellant’s commitment to his work as a scaffolder and his role assisting in the coaching of the Queanbeyan Blues, his leadership and mentorship towards younger employees, and young rugby league players. Regrettably, it is not uncommon for persons who are otherwise of good character to commit driving offences, particularly offences concerning driving under the influence of alcohol.
Taking into account the appellant’s plea of guilty, in all of the circumstances, no penalty less than that imposed, namely, an $800 fine and an 18 month good behaviour order, could be appropriate.
The disqualification period
It remains necessary to consider what period of disqualification should be ordered. This requires consideration of the applicable default disqualification period and the approach to be taken to default disqualification periods generally.
The applicable default disqualification period
At the time of the offending, s 33(3) of the Alcohol and Drugs Act provided that:
If a court convicts a person other than a special driver of an offence against s 19(1) and finds that the concentration of alcohol in the person’s blood or breath was at level 2, 3 or 4, the person is automatically disqualified from holding or obtaining a driver licence for:
(i) the period mentioned in the item applying to that level in table 33, column 4 [the default disqualification period]; or
(ii) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item [the minimum disqualification period] – the shorter period.
At the time of the offending, s 33 prescribed a default disqualification period of three years and a minimum disqualification period of 6 months for a level 3 offence committed by a repeat offending.
Shortly before judgment was to be delivered in this appeal, the Road Safety Legislation Amendment Act 2024 (the 2024 Amending Act) came into operation. The Amending Act replaced ss 32 to 34 of the Alcohol and Drugs Act with a new Part 4 of the Act, which provides for driver disqualification periods for first and repeat offenders, for offences against s 19 of the Act (and other offences). Following that amendment, s 28 of the Alcohol and Drugs Act now provides that the default disqualification period for an offence against s 19 committed by a level 3 repeat offender is two years. The minimum disqualification period has increased from six to twelve months disqualification.
The Explanatory Statement for the Road Safety Legislation Amendment Bill 2023 makes reference to the risk that automatic licence disqualification, if applied “without sufficient due process and legal safeguards”, may limit:
… a person’s human rights by limiting a person’s ability to work where they use their car or licence for work, and right to family and children where a person relies on a car to care for family members. It can also have a disproportionate impact on disadvantaged and vulnerable community members, particularly those with lower incomes who may struggle to pay fines or legal fees. (at p. 9)
The Statement clarifies that the Amending Act “carries over” the “legislated government policy” that is enacted in the current provisions (of default and minimum disqualification periods), “with adjustments being made to ensure the disqualification is appropriate and proportionate”. The Statement explains that the default disqualification periods have been calculated by a formula which is consistent with that applied in Victoria, and which is slightly lower than NSW.
The Statement recognises that the application of that ratio has led to a “reduction of default automatic licence disqualification periods for some of the higher range drink driving offences”, including those for a s 19, level 3 repeat offender. The Statement states that it is expected that the reduction will “bring minimum and default automatic licence disqualification periods more in line with the automatic disqualification periods imposed by the courts currently”.
The amended disqualification period did not come into effect until well after the commission of the present offence. As the applicable minimum disqualification period was increased, the amended minimum disqualification period does not apply on resentence to the offending that is the subject of the present appeal: s 84A(2) of the Legislation Act. However, both parties agreed that the reduction in the default disqualification period will apply on resentence by reason of s 84A(3) of the Legislation Act, which provides that:
If a law reduces the maximum or minimum penalty, or the penalty, for an offence, the reduction applies to an offence committed before or after the law commences, but does not affect any penalty imposed before the law commences.
As outlined above, the penalty imposed by the Magistrate was affected by error and requires resentencing according to law. On that resentence, s 84A(3) requires the application of the reduced disqualification period.
The approach to be taken to the default disqualification period
The relationship between the minimum and default disqualification periods under s 33 of the Alcohol and Drugs Act was considered by Murrell CJ in Ayres v Ford [2016] ACTSC 204; Stoehr v Meyer [2016] ACTSC 144; 311 FLR 23; and Clarkson v Earle [2016] ACTSC 331 at [10] – [12], citing Burow v Hoyer [2015] ACTSC 21; 292 FLR 325 (Refshauge J) and Tindall v Spalding [2014] ACTSC 253; 10 ACTLR 198 (Burns J).
Her Honour concluded that the default disqualification period should not be treated as applying in the “usual case”, and the critical question is not whether there is a sufficient reason to justify reduction of the ‘default’ disqualification. Rather, her Honour held that a court should ask what period of disqualification is necessary or desirable to achieve the relevant sentencing purposes. Whilst a primary consideration will be the purpose of protection of the public, the impact of disqualification on the offender may also be considered.
A different approach appears to have been taken by Penfold J in Barnes v Barratt [2018] ACTSC 295. In Barnes at [52], Penfold J (following her Honour’s previous decision in Mwauluka v Turkich [2013] ACTSC 1 at [46]) held that:
Unlike a maximum sentence specified for an offence, which would only be imposed for the most serious examples of the offence (although not only for an offence such that it is impossible for the sentencing judge to imagine a worse case of the offence) (Veen v The Queen (No 2)(1988) 164 CLR 465 at p 478), the default disqualification period is to apply automatically on conviction for the offence concerned unless there is good reason to reduce it. (emphasis added)
It does not appear that the decision of Murrell CJ in Clarkson (and earlier decisions) was drawn to Penfold J’s attention in the hearing in Barnes. On the other hand, it also appears that the decision of Penfold J in Mwauluka was not drawn to Murrell CJ’s attention in Clarkson.
The distinction between the approaches in Barnes and Clarkson is fine, and in many cases may not be determinative of the ultimate outcome. However, in at least some cases (of which the present case may be one), this distinction will be important. The Barnes approach would require the court to be positively satisfied that there is a “good reason” for the default disqualification period to be reduced. In contrast, the Clarkson approach requires the court to ask what the appropriate period of disqualification should be to achieve the relevant sentencing purposes, particularly protection of the community. It does not appear that this aspect of the decisions in Barnes, or Clarkson, have been since considered by this Court.[2]
[2] Barnes was cited in R v Bonfield [2021] ACTSC 362, but not on this issue.
Whilst the use of the term “default” in s 28 (previously s 33) of the Alcohol and Drugs Act lends some support for the Barnes approach, in my view, the approach outlined in Clarkson is to be preferred for the following reasons:
(a)Section 28(2) does not authorise a court to increase the default disqualification period.[3] The text of the provision only authorises the Court to impose a “shorter period” than the disqualification period: s 28(2) of the Alcohol and Drugs Act; cf s 63(3)(c) of the Road Transport (General) Act 1999 (ACT). If the “default disqualification” were intended to apply in ‘the usual case’, it might be expected that s 28 would expressly provide for an increase in the disqualification period where the offending or the subjective case of the offender is more serious than a ‘usual case’.
(b)Section 28 does not require the Court to be “satisfied” of any matter before imposing a shorter disqualification period.
(c)The increases in the default disqualification period between levels 2, 3 and 4 (which are entirely determined by the offender’s blood alcohol concentration level) are significant. At the time of the offending, the increase in the default disqualification period from level 2 (under 0.05g) to level 3 (above 0.05g but less than 0.08g) was from 12 months to 3 years. The default disqualification period for level 4 (above 0.08g but less than 0.15g) was five years. Following the enactment of the 2024 Amending Act, the increases are somewhat less severe (two years for a level 3 offence, and three years for a level 4 offence).
(d)As Refshauge J observed in Burow (cited by Murrell CJ in Stoehr at [21] – [23]), the present form of the disqualification provision, which refers to a “default” disqualification period, was introduced by the Road Transport Legislation Amendment Act 1999 in 2000: Burow at [19] – [28]. Prior to these amendments, ss 32 and 33 of the Alcohol and Drugs Act referred to a “maximum” disqualification period. Although the terminology (“maximum” to “default”) was amended, the periods of disqualification were not. There was no indication in the extrinsic material to this amendment to suggest that the change in terminology was intended to convert the pre-amendment “maximum” to a “usual” period of disqualification.
(e)Further to (d) above, when s 33 and related provisions were later amended by the Road Transport Legislation Amendment Act 2016 (ACT) (which amended the Alcohol and Drugs Act to provide that an automatic disqualification period “is taken to be an order of the court”, so as to enable the bringing of an appeal against an automatic disqualification period), the Explanatory Statement to that Bill (the Road Transport Legislation Amendment Bill 2015 (No 2) (ACT)) confirmed that “under each of these provisions (ss 32, 33 and 34) … the period of disqualification may therefore be the minimum period, the default period, or a period shorter than the default period that is not less than the minimum period”.
[3] Such an increase could only be made under s 65 of the Road Transport (General) Act 1999 (ACT), which empowers the Court to order that a person’s licence be disqualified until further order of the Court. Section 65 provides for an indeterminate loss of licence, where the Court is not satisfied that the default period of disqualification will be sufficient to protect the community.
Accordingly, whilst the “default disqualification period” is not strictly a maximum penalty, and in particular, is not reserved for the most serious examples of the offence, it is not necessary for the Court to be satisfied that there are “good reasons” before imposing a period of disqualification that is less than the default period. Rather, the Court should ask what period of disqualification is appropriate, in particular to meet the need for the protection of the community.
In the present case, there is no evidence that the loss of the appellant’s licence will have any effect on the appellant above and beyond the inconvenience that is common to all offenders upon the loss of their licence. I bear in mind that the earlier offences which increased the default disqualification period occurred seventeen years ago. I am also satisfied that the appellant is remorseful for his conduct. However, for the reasons outlined above, the circumstances of the present offending, particularly the fact that the offender was warned by police not to drive shortly before the offence was committed, are such that the protection of the public must carry particular weight.
In my view, a disqualification period slightly less than the two year amended default disqualification period is appropriate. On resentence, I will impose a disqualification period of 20 months.
Relevance of the statutory stay of the Court’s orders
Section 216(1) of the Magistrates Court Act 1930 (ACT) (‘MCA’) states:
(1)If a person (the appellant) appeals under this division—
(a)the enforcement or execution of the decision, conviction, order, sentence or penalty that is the subject of the appeal is stayed until the appeal is decided or is abandoned or discontinued;
As a result of s 216 of the MCA, the 18-month good behaviour order and the disqualification period were stayed upon the filing of the appeal.
It is sometimes the case that an appellant will not be aware of the effect of s 216 in staying orders of the Magistrates Court, particularly disqualification periods. This Court has held that evidence that an appellant did not drive as a result of such a mistaken belief may be taken into account in determining the period of disqualification to be imposed on appeal: Shaw v Leach [2014] ACTSC 135 at [30] – [33]; Senderowski v Mothersole [2013] ACTSC 217 at [23] and Irving v Head [2016] ACTSC 37; 75 MVR 13 at [105].
When these proceedings were first listed for hearing on 29 April 2024, Mr Sharman, who appeared for the appellant, sought, and was granted, an adjournment to obtain evidence that the appellant did not drive following the imposition of the automatic disqualification period as a result of a mistaken belief that he was not permitted to drive. The appellant was absent for this hearing as he was attending a funeral in Queensland. The prosecution also sought time to consider the operation of the stay provisions.
On 16 May 2024, Mr Sharman sought, and was granted, a further adjournment to obtain instructions from the appellant and to execute any necessary affidavits. The appellant was absent as the appellant’s father had been taken to the hospital at the South Coast and the appellant had gone to see him. On 24 May 2024, Mr Sharman again sought an adjournment, indicating that he had still not been able to contact his client. As Mr Sharman could not provide any information as to when his client may be in a position to respond to his requests to make contact, I refused this application.
Accordingly, there is no evidence before the Court as to whether the appellant has been driving during the period that his disqualification was stayed. In these circumstances, the statutory stay does not provide a basis for reducing the disqualification period that is otherwise appropriate.
Orders
For the reason outlined above, no lesser sentence is appropriate other than that imposed by the Magistrate, namely a conviction, $800 fine and an 18-month good behaviour order. However, I have concluded that the disqualification period should be somewhat less than that which was ordered by the Magistrate.
Where the Court resentences an appellant following a successful appeal, it is often preferable that the Court set a new sentence, including resetting the term of any good behaviour order to take account of the statutory stay. However, as the appellant has not attended Court for the delivery of the judgment, it will not be possible for the appellant to sign a new good behaviour undertaking at this time. The parties agreed that in these circumstances, it is open to the Court to confirm the good behaviour order of 18 months which was imposed by the Magistrate. As a result of the statutory stay, that order will now expire on 25 November 2025.
For the reasons outlined above, I will make a separate order setting aside the default disqualification period of three years’ disqualification which applied at the time of the proceedings in the Magistrates’ Court, and will impose a new disqualification period of 20 months.
I recognise that this approach, of confirming one penalty, and varying another penalty, may not be permissible under comparable appellate provisions in New South Wales. However, as Mossop J observed in Morrison v Maher [2021] ACTSC 312 at [37], the text of s 218 of the MCA (which differs from s 6(3) of the Criminal Appeal Act 1912 (NSW)) permits a court to “confirm, reverse or vary” a penalty appealed from. I am satisfied that s 218 of the MCA enables the Court to confirm one penalty appealed from (specifically, the good behaviour order), whilst varying another penalty appealed from (the disqualification period).
Accordingly, I make the following orders:
(1)The appeal is allowed in part.
(2)The appeal against the conviction and sentence imposed in the Magistrate’s Court is dismissed. The $800 fine and the 18 month good behaviour order previously imposed by the Magistrate are confirmed.
(3)The appeal against the disqualification period is allowed. The appellant will be disqualified from driving for a period of 20 months, to date from today.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 29 May 2024 |
19
7