Barac v Thexton [2008] ACTSC 137

Barac v Thexton [2008] ACTSC 137 - ACTSC 2008 case summary — Zoe

[54]

To see whether the order of the Court disqualifying Ms Barac from holding or obtaining a driver's licence is subject to an appeal as set out in s 208(1) of the Magistrates Court Act requires an examination of the relevant parts of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). None of Pt 3.2 (Sentence of Imprisonment), Pt 3.4 (Non-association and place restriction orders), nor Pt 3.5 (Deferred sentence orders) applies in this case. Part 3.3 (Non-custodial orders) includes the following orders: good behaviour orders, fines, non-conviction orders, including "ancillary orders" (which includes "disqualification or loss or suspension of a licence or privilege": s 18 of the Sentencing Act and reparation orders.
Clearly the fine was an order against which Ms Barac could appeal. The question is whether the licence disqualification was also an order against which she could appeal. It is, of course, not an order made under the Sentencing Act because it is made under the Alcohol and Drugs Act. Indeed, were the court not to have made an order at all, then there would be no order of the court but an automatic statutory disqualification. In my mind, the real question arises as to whether, in those circumstances, there is a power to appeal against such an order.
To return to Pt 3 of the Sentencing Act, there is a reference in that part to "Driver licence disqualification orders - motor vehicle theft": s 16. As the heading to that section summarises, this only applies where an offender is convicted or found guilty of an offence against a Territory law involving the theft of a motor vehicle or against the Criminal Code 2002 (ACT), s 318 (Taking etc motor vehicle without consent).
I note in passing that the definition of "driver licence disqualification order" in the dictionary to the Sentencing Act refers curiously to s 17(2). It seems crystal clear that that is an error and should refer to s 16(2). It may be that this is a typographical error or correction to a reference to the law (see s 116(1)(a) or (b) of the Legislation Act 2001 (ACT)) and parliamentary counsel may be able, under s 114 of the _Legislation Act 200_1 (ACT), to correct that when the next republication is made.
As noted above at [15], there is a reference to "_disqualification or loss or suspension of a licence or privileg_e". This is in s 18 of that Act and refers to ancillary orders that can be made when a non-conviction order is made. It does not apply here, for Ms Barac was convicted of the offence.
Accordingly, I can see no relevant reference in Pt 3.3 to the imposition of a relevant licence disqualification. The order of disqualification is, therefore, not an order under Pt 3.3 of the Sentencing Act. Thus, no appeal from the disqualification could apparently be taken in reliance on that part.
Part 3.6 of the Sentencing Act, also referenced to in s 208(1)(e) of the Magistrates Court Act 1930 (ACT), however, refers to combination sentences and s 29 provides:

[62]

In the event, after Mr Edmonds explained the scope of the evidence proposed to be adduced and I agreed to give Ms S Jowitt, who appeared for the respondent, an appropriate adjournment after hearing the evidence so that she could deal with the evidence adduced, Ms Jowitt could point to no specific prejudice and I gave leave to adduce the evidence at least by dispensing with the strict requirements of this rule as I had power to do under r 6 of the Court Procedures Rules 2006.
Ms Barac gave evidence that she and her de facto partner had a child who was 20 months old. Her partner owned a business and she was an integral part of it. While much of her work was administration, she had to deliver plans in person to local councils, do the banking and run errands, including occasionally delivering equipment to sites. She estimated that she was out of the office about three days per week.
As she had lost her licence, her partner had to do these jobs. It meant that he had to do his other work after hours which meant he rarely arrived home until well after their child had gone to bed. It was significantly affecting their relationship and his relationship with his child. Ms Barac also noted that the business was not able to afford additional staff or to pay the present staff additionally for this work. She also found that it made it extremely difficult to go shopping, continue with swimming lessons for her child or engage in other planned activities.
She was concerned that buses had no safety belts nor specific seats for toddlers and so her child was at some risk. Her concern for safety was laudable, but seemed a little simplistic and blinkered considering the risk she had put herself and other road users in by driving with such a relatively high blood alcohol reading. She had tried using taxis but found them unreliable, especially as she needed a taxi with a suitable child seat.
Of course, the disqualification is hardly meant to be free of impact and inconvenience for the offender. Nevertheless the degree of impact has to be considered in the whole context of the punishment imposed.
Ms Barac had pleaded guilty at the first opportunity. The matter was delayed only because she had intended to seek a restricted licence, but as a repeat offender that option was not available to her (s 67(2) of the Road Transport (General) Act 1999 (ACT)) and the matter was dealt with to finality on the next occasion.
Before the Learned Magistrate, Ms Barac had appeared for herself, obviously unaware of the serious consequences for her. As would be expected, the hearing was quite short.
Initially, it appears Ms Barac was unaware that she could not obtain a restricted licence. The transcript records as follows:

[79]

As part of the sentencing then, the period of disqualification which is considered by the court must include the determining of the personal circumstances of the offender along with all other relevant matters connected with the offender and the offence, including good character and extenuating circumstances under which the offence was committed: Fitzgerald v Police (SA) at 100; Taylor v Samuels (1977) 16 SASR 266 at 283-4. That is to say, the period of disqualification must fit the offending and the personal circumstances of the offender: Noth v McDonald at 310.
Thus, family circumstances, such as the need to look after children, is a relevant factor: Green v Webb at [15]-[16]; Burton (1990) 45 A Crim R 314 at 316. In my view, too, the availability or not of appropriate public transport is a proper consideration to take into account: R v Calder; Ex parte Attorney-General [1987] 1 Qd R 348 at 353-4.
Interestingly, there are certain strong statements in South Australia, especially in some early cases that state that the courts must disregard the effect of a disqualification of a licence on the employment of an offender. See, for example, Picken v O'Sullivan [1952] SASR 184. This position was confirmed as recently as in Porricello v Samuels (1976) 14 SASR 83 where the loss of employment was held irrelevant to whether a disqualification should be imposed or not. See, to similar effect, Marr v Rowbottom (1989) 39 A Crim R 113 at 118-9, though, in that case, at least allowing loss of employment as a relevant circumstance to be taken into account.
This view has not prevailed and, indeed, was not generally followed elsewhere. In the UK, the courts have considered employment when determining the length of disqualification of a licence: Shirley (1969) 53 Cr App R 543 at 545. In Tasmania, loss of employment through disqualification of licence was regarded as long ago as 1971 as an undue hardship: Manning v Bennett [1971] Tas SR 15 at 20. In Victoria, Batt JA said in Bazley (VSCA, Phillips CJ, Batt JA and Vincent AJA, 21 August 1997, unreported), though in the context of a penalty of imprisonment:

[81]

Similarly, in George, Crockett J referred to, "the need to examine the degree of dependency, particularly economic dependency, of the offender or the possession of a driver's licence".
Even in South Australia, the matter is now in line with the other states. In Noth v McDonald, von Doussa J said at 308, "The likely impact of a long period of licence disqualification on the employment prospects of a young man is an important factor to be taken into account in fixing a penalty..."
This perhaps recognises what UK courts have said where, in R v North [1971] RTR 366, the court referred to the need to recognise that "driving is almost essential for so many people". That, of course, makes cancellation an important tool in the courts' armoury when they attempt to reduce the shocking road toll by imposing appropriate penalties
Nevertheless, whilst one cannot increase above its proper level one part of a sentence as a "trade off" from reducing another part below its proper level, there is some opportunity to balance a sentence by ensuring that while each part is within a proper range the effects on one part can be ameliorated and the balance maintained by a proper adjustment of the other: Allen v Bates at 578; Brooks v Baldock (1974) 9 SASR 591 at 593_;_ R v Hicks (1987) 45 SASR 270 at 273.
Finally, the structure of the disqualification penalty has given me some pause. The disqualification provision is not expressed as though the specified period is in fact a maximum, as, for example, is the period of imprisonment or the amount of the fine. Rather it is what might be called the ordinary or default (the word actually used in the legislation) period unless a court otherwise orders in which case the period can be reduced but to no less than a specified minimum. There is, regrettably, nothing in the explanatory statement of the Act which introduced this provision that assists.
I was informed by Mr Edmonds, however, and it was not challenged by Mrs Jowitt, that in the Magistrates Court, where these matters are generally dealt with, the court there almost always makes an order reducing the period of disqualification and rarely allows the automatic statutory disqualification to take effect.
In this case, I do not have to decide how to approach what I find to be a difficult question of how strictly to construe this provision. I note that in McGregor v Maguire [2008] ACTSC 7, Higgins CJ did refer to the principles concerning maximum penalties, but his Honour did note at [28]-[29]:

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Judgment (91 paragraphs)

Barac v Thexton [2008] ACTSC 137 (24 November 2008)

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Legislation Cited (10)

Cases Cited (14)