Baverstock v Abbott [2005] ACTSC 24

4. The circumstances of the offence put to the court were that on Sunday,

1 February 2005 at 4.25 am, police observed a white Mitsubishi van driving erratically. The vehicle turned left from Northbourne Avenue onto Barry Drive and proceeded along Barry Drive. The vehicle was followed and was observed speeding; travelling at 80 kph in a 60 kph zone.

5. The police stopped the vehicle, noticed a strong smell of intoxicating liquor about the driver and subsequently, he was subjected to a breath analysis, which as I have said, recorded a result of 0.09 grams of alcohol per 100 millilitres of blood.

6. On this appeal, the appellant seeks that the conviction be set aside. It would follow from this result, that the penalties imposed by the Magistrate would also be set aside.

7. This appeal is really a challenge to the Magistrate not exercising his discretion under s 402 of the Crimes Act 1900 (ACT) (the Crimes Act). Section 402 of the that Act provides:

(1) If -

(a) a person is charged before a court of the Territory with an offence against a Territory law; and

(b) the court is satisfied that the charge is proved but is of opinion, having regard to -

(i) the character, antecedents, age, health or mental condition of the person; or

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation;

the court may dismiss the charge or, without proceeding to conviction, by order, ... [require a person to enter into a recognizance with or without sureties to be of good behaviour].

8. The grounds upon which it is said that the Magistrate erred are:

1. The learned Magistrate erred in relying the appellant "driving erratically" when there was no such concession by the appellant.

2. The learned Magistrate erred in exercising his discretion by giving too significant a weight to the appellant's prior convictions.

3. The recording of a conviction and the fine and period of disqualification were manifestly excessive in all of the circumstances.

9. Although the third ground is expressed as one that would invoke a challenge to the penalty being manifestly excessive, no real issue could be taken as to the actual quantum of the penalty once it was said to be appropriate to record a conviction. I understood Mr Silk, who appeared as counsel for the appellant, to concede as much.

10. Before the Magistrate, the appellant's counsel, in the course of his submissions, put the following:

In respect to the driving, he doesn't know - he knows what "erratic" means, but he can't picture what it was that perhaps brought the police's attention to him.

Of itself, that comment is not enough to put in issue the fact that the driving was not erratic. The accepted fact was that it was this particular factor that drew the attention of the police to the appellant on the occasion of the offence.

11. In the context of the Magistrate having to determine whether he should apply s 402 of the Crimes Act, the question of the appellant driving erratically could only have relevance to whether the offence was of a trivial nature (see s 402(1)(b)(ii)). As far as that aspect is concerned, that issue would seem to be very much beside the point. After all, the police evidence that was not challenged was that the appellant was speeding in a 60 kph zone by travelling at 80 kph. In addition, the blood alcohol concentration recorded was almost twice that of the minimum alcohol concentration for the offence.

12. In those circumstances, it is difficult to see how the offence could be regarded as one of a trivial nature. Nor do I accept that the comment made by the appellant's counsel is truly a challenge to whether or not the appellant was in fact driving erratically, but even if that were to be so, the fact that the highest that it could be put in the sentencing submissions was that the appellant could not picture what it was that brought about the police attention to him. That cannot be regarded as a positive submission going to the extent to which the offence was of a trivial nature and, as I have said, the alcohol concentration and the observed speeding took the matter well out of such a category.

13. Similarly, the complaint that the Magistrate gave "too significant a weight to the appellant's prior convictions" as alleged in the appellant's second ground of appeal, does not meet the issue that the appellant's antecedents could justify the Magistrate exercising the discretion that he has under s 402 of the Act.

14. The Magistrate remarked, when appellant's good driving record over 23 years was put to him:

Well I'd normally accede to your request, Mr Silk, with his driving history - his length of driving, however, he has convictions in '96, '97 and a criminal conviction in '93. In my view, I'm not - I will not exercise my discretion to give him a non-conviction penalty.

Well your Worship has them in front of you, you know what they - they relate to a speeding and it's related - - -

Yes, but the driving in this case was at a speed of 80 kilometres an hour in a 60 zone, driving erratically with an alcohol content of nearly twice the limit, .09. No, I won't accede you a non-conviction because of the prior convictions.

15. I take the Magistrate's remarks to mean that if the appellant had no convictions, the fact that he had been driving for 23 years without blemish would be a significant factor in respect of his antecedents. However, the fact of the convictions denied him reliance upon such a driving record. It was clearly open, to the Magistrate to take that view.

16. The Magistrate could take into account any one of the matters to which s 402 of the Crimes Act refers. The passage that I have quoted indicates that he particularly had regard to the nature of the offence itself and the appellant's antecedents and did not regard those matters as sufficient to cause him to exercise his discretion.

17. No other matters were put to me that the Magistrate might have had regard to in determining whether in the terms of s 402 of the Crimes Act, it was inexpedient to inflict any punishment (cf Davis v Conroy, [2005] ACTSC 8, 14 February 2005). No error has been demonstrated in the Magistrate declining to invoke s 402 of the Crimes Act.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the respondent: ACT Director of Public Prosecutions