West v Russell
[2014] ACTSC 89
•13 May 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | WEST v RUSSELL |
Medium Neutral Citation: | [2014] ACTSC 89 |
Hearing Date: | 10 October 2013 |
DecisionDate: | 13 May 2014 |
Before: | Penfold J |
Category: | Appeal from the Magistrates Court (criminal) |
Catchwords: | APPEAL AND NEW TRIAL – Appeal against discretionary decision of Magistrate – specific error in sentencing identified – another sentence warranted – appeal upheld – appellant to be re-sentenced. CRIMINAL LAW – PARTICULAR OFFENCES – Driving Offences – PCA (drink-driving) offence – disqualification period reduced – Magistrate’s comments about calculation of reduction suggested that default disqualification period treated as tariff or maximum and reduced by deductions for specific circumstances – Magistrate should have determined whether default disqualification period should be reduced, and if so, should have determined appropriate disqualification period by considering the period necessary to fulfil all relevant purposes of sentencing – appeal allowed – appellant to be re-sentenced. |
Legislation cited: | Crimes (Sentencing) Act 2005 (ACT), s 7 Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 4E Road Transport (General) Act 1999 (ACT), s 61B |
Cases cited: | 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) 61 NSWLR 305 Newham v Cogle [2012] ACTSC 76 Scott v Wynants (2009) 4 ACTLR 13 Shankar v Saltmarch [2012] ACTSC 171 |
Decision: | 1. The appeal is allowed. 2. The parties will be heard on the form of the order needed to give effect to a total disqualification period of 30 months. |
Parties: | Regan Cameron West (Appellant) Benjamin Peter Russell (Respondent) |
File Number: | SCA 32 of 2013 |
Introduction
On 3 May 2013, Regan West was convicted, on a plea of guilty, of an offence of, being a repeat offender, driving with the prescribed concentration of alcohol in his breath. The concentration of alcohol recorded by a breath test was 0.156gm, a Level 4 reading under s 4E of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). He was fined $1,100 plus court costs and levies of $129, and disqualified from holding a driver licence for three years (reduced by the suspension period served after he was initially charged: s 61B, Road Transport (General) Act 1999 (ACT)). He has appealed against the disqualification period imposed in the Magistrates Court.
Background
Mr West was stopped by police at about 1.30 am on Saturday 9 February 2013 on Athlon Drive, Greenway. Police had observed his car moving slowly back and forth between two southbound lanes. When stopped, Mr West exhibited signs of being affected by alcohol. Police reported that his eyes were watery, his speech was slow and somewhat slurred, and his balance and walk were unsteady. His licence was immediately suspended for 90 days. The only “explanation” offered for the offence was that Mr West had been at a work function which was a party that extended into the early hours of the morning; there is nothing in the facts as so described that explains why he attempted to drive home rather than catching a taxi or making some other arrangement.
The Magistrates Court proceedings
Two particular matters were put to the sentencing Magistrate.
First, it was submitted, although without any evidence, that a conviction would prevent Mr West accompanying his Canadian wife on visits to her family in Canada. Her Honour nevertheless convicted Mr West, noting that he already had convictions, and the conviction is not challenged on appeal.
Secondly, it was put to her Honour that a licence disqualification would have a big impact on the family’s ability to transport Mr West’s five-year-old son to his school in Kambah each day. There were problems arising from the fact that both Mr West and his wife worked quite a distance away from their home in Bonython (Mr West, for instance, worked in Belconnen – it apparently involved several bus trips for Mr West to pick up his son from after-school care and take him home). The child’s grandparents, Mr West’s parents, were also needed to help out with child care, in particular with delivering the child to school in the mornings.
The appeal
Mr West appealed his disqualification period on 16 May 2013. The initial appeal grounds were that:
i)The sentence was manifestly excessive; and
ii)The learned Chief Magistrate erred in her approach to setting the length of the appellant’s disqualification by using the automatic period of 5 years as a tariff or starting point.
Manifest excess
In written submissions, counsel for Mr West contended that the disqualification period was manifestly excessive having regard to:
(a)usual sentencing practice;
(b)the objective seriousness of the matter, noting that:
(i)the breath test reading of 0.156gm was little higher than the bottom of the Level 4 range (0.15gm);
(ii)the offence occurred in the early hours of the morning when few other road users were put at risk;
(iii)Mr West had no passengers at the time; and
(iv)although the offence was detected as a result of Mr West’s manner of driving, “there was no aggressive or competitive driving, nor was there any accident”; and
(c)Mr West’s subjective circumstances, particularly:
(i)the impact of the disqualification on his family; and
(ii)the fact that, although Mr West was a repeat offender, his previous drink-driving offence had been nearly 11 years before the current offence.
It is convenient to consider “usual sentencing practice” after discussing the particular circumstances of this case.
Objective and subjective circumstances
Reference was made in submissions to the guideline judgment of the NSW Court of Criminal Appeal (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) 61 NSWLR 305 (the Guideline Judgment)) which at [146] sets out the following guideline:
(1) An ordinary case of the offence of high range PCA is one where:
(i)the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii)the offender was detected by a random breath test;
(iii)the offender has prior good character;
(iv)the offender has nil, or a minor, traffic record;
(v)the offender's licence was suspended on detection;
(vi)the offender pleaded guilty;
(vii)there is little or no risk of re-offending;
(viii)the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:
(i)an order under s 10 of the Sentencing Act will rarely be appropriate;
(iii)a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course;
(iii)the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv)a good reason under (iii) may include:
(a)the nature of the offender's employment;
(b)the absence of any viable alternative transport;
(c)sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:
(i)an order under s 9 of the Sentencing Act will rarely be appropriate;
(ii)an order under s 10 of the Sentencing Act would very rarely be appropriate;
(iii)where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:
(i)the degree of intoxication above 0.15;
(ii)erratic or aggressive driving;
(iii)a collision between the vehicle and any other object;
(iv)competitive driving or showing off;
(v)the length of the journey at which others are exposed to risk;
(vi)the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:
(i)an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(ii)where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
(i)a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii)where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
Counsel for Mr West submitted that the offence was not as serious as it could have been, and did not have many aggravating features. This is no doubt true – an offence could always have been worse – but it is not clear that the current offence was as minor as counsel for Mr West seems to be contending.
Mr West’s case would satisfy the Guideline Judgment criteria for an “ordinary case” of a high-range PCA offence (equivalent to a Level 4 offence under ACT law) except that:
(a)his offence was detected not by a random breath test but because of his erratic driving; and
(b)he did not have prior good character, having several convictions for minor dishonesty offences, and his traffic record, albeit consisting only of the prior Level 4 drink-driving offence, was not in my view properly described as only a minor traffic record.
In the terms of the Guideline Judgement, Mr West’s moral culpability was increased by his erratic driving.
In short, the offence was more, not less, serious than the “ordinary case”.
Mr West’s previous drink-driving offence, as a result of which he was a “repeat offender”, had happened a long time before, but it had involved an even higher Level 4 reading than the current offence (even if the earlier drink-driving offence had been a low-level drink-driving offence, it would still have rendered Mr West a repeat offender for present purposes).
As already noted, there was a description of the circumstances in which Mr West found himself driving, but no explanation for his decision to drive when he must have known he was affected by alcohol.
As to Mr West’s personal circumstances, I note that his licence disqualification, while not apparently threatening his employment, was having an undesirable effect on the length of his five-year-old son’s normal day.
Usual sentencing practice
In relation to usual sentencing practice, counsel made the following submission:
the tariff for a repeat offence of level 4 drink driving, where the appellant has only been convicted of one prior offence of drink driving is a fine and disqualification of 18-24 months, and therefore that the disqualification imposed of 3 years is outside the range or tariff for a repeat offence of level 4 drink driving: see Scott v Wynants (2009) 4 ACTLR 13 (AT 16), Hammond v RTA & Anor [2006] ACTSC 125 & Dawson v Coles [2012] ACTSC 147.
Barbaro v The Queen [2014] HCA 2 was decided after this appeal was heard. In that decision, the plurality of the High Court (French CJ, Hayne, Keifel and Bell JJ) made it clear (at [41]) that it is unwise to think of tariffs and available ranges in the context of sentencing, and that the imposition of any particular sentence, higher or lower than other comparable sentences, does not fix the outer boundaries of the available sentencing discretion. This is not, however, to reject the relevance of other comparable sentences or of “usual sentencing practice” as such (at [40]).
The fact that disqualification periods imposed for Level 4 drink-driving offences in the ACT tend to cluster around the range of 18 to 24 months indicates that the three-year disqualification period in this case is relatively long, but does not of itself establish that it is manifestly excessive.
Assessment of total penalty
Counsel for the respondent submitted that consideration of whether a sentence was manifestly excessive needed to take account of the total penalty imposed, being in this case the $1,100 fine as well as the licence disqualification period. I accept this submission in general terms, while noting that a disqualification period and a fine seem to serve somewhat different sentencing purposes (the purposes of sentencing are set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT)). Clearly both have elements of punishment, deterrence, holding the offender accountable, and denunciation, but the licence disqualification also has a community protection element, as well as being a direct response to the offending behaviour to the extent that the behaviour is an abuse of the privilege of driving on public roads.
The proposition that, in considering excess or inadequacy in relation to a sentence, the total effect of the various penalties imposed needs to be assessed opens the possibility of an argument that a licence disqualification or indeed a term of imprisonment could be reduced if a higher fine were imposed. However, the different purposes and effects of fines and disqualification periods identified above suggest that any process of trading-off fines and disqualification periods would require very careful consideration.
In particular, the possibility of imposing higher fines and correspondingly lower disqualification (or imprisonment) periods seems to me to raise some very difficult equity issues. It is one thing to say that a fine imposed needs to be taken into account in assessing the severity of the total sentence, but it would be quite another thing to say that the various elements of a sentence could be traded off against each other, so that a longer disqualification period could be justified by the imposition of a relatively low fine, or, conversely, that an offender who could pay a larger fine could effectively “buy out” part of a disqualification period (or, in other cases, a term of imprisonment).
On the other hand, I note that Refshauge J in Barac v Thexton [2008] ACTSC 137 at [63] and [64] took the view that, having determined that a shorter disqualification period than had been imposed in the Magistrates Court was justified by the hardship caused to the appellant by licence disqualification, it was appropriate to increase the fine imposed to ensure that the total sentence was not too lenient.
Conclusion
Fortunately, I do not need to express a conclusion about the extent to which different elements of a penalty can or should be traded off against each other. This is because nothing in the material put before me has persuaded me that either the total penalty, or the disqualification period in particular, was manifestly excessive.
Specific error – using the default disqualification as a starting point
In imposing the three-year disqualification period, her Honour said:
You’ll be disqualified from holding or obtaining a driving licence for three years, that is 36 months from today. That’s reduced clearly from the five years’ default that otherwise would have applied. I’ve reduced it by a year in light of your guilty plea and a further year in light of the impact on your family circumstances.
Her Honour clearly adopted an approach that has been held by Refshauge J to be erroneous, for instance in Newham v Cogle [2012] ACTSC 76 at [46] where his Honour said:
To start from the automatic or default period and then reduce it as if a maximum or a tariff is, in my view, an error. 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, is necessary to penalise the offender and protect the public. That the learned sentencing Magistrate did not do and, in my view, her Honour thereby came to a manifestly excessive period.
The Newham v Cogle approach has been followed in a number of other cases, including by me in Hill v Wenham [2012] ACTSC 156.
When the hearing was adjourned part-heard late on the listed hearing day, counsel for the respondent sought leave to make further submissions to the effect that Refshauge J’s conclusions were themselves erroneous. I refused to give leave, not because I do not consider that no useful submissions could be made but because it did not seem appropriate for the appellant to be put to the expense of preparing a second set of submissions responding to arguments that had not been made in initial submissions. As well, of course, any serious review of his Honour’s approach would more usefully be conducted by the Court of Appeal than by another single judge.
In the circumstances, I see no basis for departing from Refshauge J’s approach at this point. Accordingly, having found that the sentencing Magistrate had adopted an approach that has been held to be erroneous, I consider that the sentencing discretion is re-opened, and that I should uphold the appeal, and re-sentence, if I consider that some other sentence is warranted.
Is another sentence warranted?
It is apparent that the sentencing Magistrate must have considered that there was “a sufficient and appropriate reason to reduce” the default disqualification period, given that she proceeded to do just that, and I accept the proposition that the circumstances of this case provide a reason to reduce the period of disqualification. The relevant circumstances seem to me to be, principally, that the drink-driving offence by virtue of which Mr West was a repeat offender had taken place 11 years previously and, less significantly, the impact of the disqualification on Mr West’s family.
I have already indicated that I was not convinced by counsel’s attempts to minimise the seriousness of the offending in this case (at [10] above).
Nevertheless, having accepted that a five-year disqualification would not be appropriate, I have considered Mr West’s position by reference to the matters mentioned in the Guideline Judgment and otherwise, but taking account of the facts:
(a)that the NSW framework in which the Guideline Judgment applied included a minimum disqualification period for a high-range drink-driving offence of two years (compared with 12 months in the ACT); and
(b)that a repeat offender in NSW was a person who had committed a relevant offence in the five years before the offence concerned.
That is, the NSW provisions applied to a more narrowly-defined group of offenders which excluded many of the less serious examples of repeat offending (ie any in which the earlier offence was committed more than five years before the repeat offences) and, for those more serious offences, restricted the sentencing discretion by setting a longer minimum disqualification period than in the ACT.
Although reference to usual sentencing practice will not of itself establish that a sentence is manifestly excessive, it is certainly appropriate to consider comparable cases in exercising the sentencing discretion afresh (see [18] above). Accordingly, I have also taken account of disqualification periods imposed in this court in respect of Level 4 drink-driving offences by repeat offenders, specifically:
(a)Shankar v Saltmarch [2012] ACTSC 171 (blood alcohol reading 0.259gm; disqualification period after appeal 32 months);
(b)Dawson v Coles [2012] ACTSC 147 (blood alcohol reading 0.204gm; disqualification period after appeal 20 months);
(c)Hill v Wenham [2012] ACTSC 156 (blood alcohol reading not stated; disqualification period after appeal 24 months); and
(d)Senderowski v Mothersole [2013] ACTSC 217 (blood alcohol reading 0.223gm; disqualification period after appeal 24 months, which would have been 27 months but for a six-month prison sentence that had already been served in full-time custody).
I have also had regard to Scottv Wynants [2009] ACTSC 62, and Higgins CJ’s reference at [14] to “a routine reduction of the default period from five years to between 18 and 24 months” for “high range repeat offenders” in the Magistrates Court.
As already noted, this case seems to be more rather than less serious than the “ordinary case” referred to in the Guideline Judgment. Although Mr West’s reading was lower than those specified in the cases mentioned above, his claims to leniency in the setting of a disqualification period are less convincing than those made in those other cases, in all of which (except Scott v Wynants) the appellant was able to establish that the licence disqualification would have a significant impact on his or her employment as well as, in some cases, on other family members.
Having regard to the circumstances of the current case and the approach taken in the Guideline Judgment and those other decisions, I consider that the total effective licence disqualification period in this case should be 30 months in total, and I would confirm the fine imposed and other costs orders made.
Conclusions
The appeal will be allowed, and a new disqualification period of 30 months is to be applied.
Before finalising the re-sentencing, I shall hear submissions from the parties as to what part of the new disqualification period has already been served.
| I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: | |
Representation: | Counsel: Mr P Edmonds (Appellant) Ms A Knibbs (Respondent) |
| Solicitors: Paul Edmonds Solicitor (Appellant) ACT Director of Public Prosecutions (Respondent) |
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