STATUTES - Acts of parliament - Interpretation - Removal of limit of what is a "first offender" - Consequences for sentencing.

Crimes (Sentencing) Act 2005 (ACT), s 7

Magistrates Court Act 1930 (ACT), ss 214, 216, pt 3.10, div 3.10.2

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4E, 15AA, 19(1), 33(3), 35

Road Transport (Driver Licensing) Act 1999 (ACT), s 31(1)

Road Transport (General) Act 1999 (ACT), s 61B

Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT)

Explanatory Statement, Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010

ACT, Parliamentary Debates, Legislative Assembly, 18 October 2010, 5235, Simon Corbell, Attorney-General

Barac v Thexton [2008] ACTSC 137

Director of Public Prosecutions v Ottewell [1970] AC 642

Grooms v Toohey (2012) 258 FLR 261

Hugg v Driessen (2012) 60 MVR 288

Marakarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

McCoy v Fenton [1960] Tas SR 149

R v Boyd [1975] VicRp 16; [1975] VR 168

R v Piercey [1971] VicRp 79; [1971] VR 647

Shires v Edwards [2011] ACTSC 132

Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

2. The order of the Magistrates Court made on 14 November 2011, that the period during which Dean Dawson is disqualified from holding or obtaining a driver licence be reduced to three years, be set aside.

3. The conviction and sentence of the Magistrates Court made on 14 November 2011 be otherwise confirmed.

4. The period during which Dean Dawson is disqualified from holding or obtaining a driver licence is reduced from five years to 20 months.

5. Having regard to the period of licence suspension and disqualification already imposed on Dean Dawson, the period during which he is disqualified from holding or obtaining a driver licence end on 5 February 2014.

1. In the early hours of 19 February 2011, Dean Allan Dawson drove a motorcycle in the suburban streets of Dunlop, ACT, after a night of heavy drinking. He crashed the motorcycle in a collision with a pedestrian refuge island.

2. He was injured in the collision and taken to hospital where, no doubt, in accordance with s 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act), a sample of his blood was taken. It was analysed to show a blood alcohol concentration of 0.204 grams of alcohol per 100 ml of blood, a Level 4 reading under s 4E of the Alcohol and Drugs Act.

3. This rendered him liable to prosecution for an offence of driving with the prescribed concentration of alcohol, contrary to s 19(1) of the Alcohol and Drugs Act. He was also, at the time, unlicensed as a driver as he did not hold a valid licence to ride a motorcycle. This constituted an offence under s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT).

4. He had no memory of the incident and, as a result, contested the drink-driving charge but was found guilty. He was fined $1 500 and allowed six months to pay. He was disqualified from obtaining or holding a licence for three years, reduced from the default disqualification of five years. For the charge of driving unlicensed, he was fined $500 and permitted six months to pay.

5. He appealed against the conviction and sentences. At the hearing of the appeal, however, that appeal against conviction was abandoned and only the hearing against sentence was pressed. Indeed, only the period of disqualification was challenged.

6. This Court has power under pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.

7. There are limits to the decisions that may be the subject of appeals. In particular, the statutory disqualification of a person from holding or obtaining a licence is not appellable: Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1. As I held in that case, however, where the automatic disqualification has been reduced by the Court, that decision is appellable, as here.

8. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.

9. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate, and that I am not merely tinkering.

10. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

11. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal, as it will be in this case. I deal with that below (at [48]).

12. Mr Dawson had been celebrating with work colleagues on the evening of Friday 18 February 2011. He had consumed a quantity of beer from about 8:00pm when he started drinking until about 3:30am when he went by taxi to the home of one of his colleagues.

13. Later that morning, he borrowed his colleague's motorbike and rode it around the local streets, ultimately crashing into a pedestrian refuge traffic island, flattening the signage there. He was, as noted above (at [2]), taken to hospital where he was treated for his injuries, which included multiple abrasions to his abdomen, shoulder and ring finger and a comminuted fracture of his nasal bone. He was discharged from hospital the next day, on 20 February 2011.

14. When the blood sample, taken from him and analysed as noted above (at [2]), he was issued with an immediate suspension notice under s 61B of the Road Transport (General) Act 1999 (ACT) (Road Transport Act) from 31 March 2011.

15. That suspension ended 90 days later, in accordance with the statute.

16. Mr Dawson is a 34 year-old plumber and gas fitter. He is self-employed. He has held a driver licence for 16 years.

17. He works six days a week at varying hours and on a range of jobs under various sub-contracts. This work also includes servicing call-outs for private clients who need his services at varying hours. Those call-outs can occur on the seventh day of his working week. The immediate suspension made it very difficult for him to manage his work. He needs transport, not only to get to work sites, but also to carry his equipment and plant around with him.

18. Mr Dawson has a short criminal history. He was fined for a street offence in 2006. Most significantly, he was convicted for a drink-driving offence in 1996. Thus, he was, for the purposes of sentencing under the Alcohol and Drugs Act, a repeat offender.

19. In imposing sentence, the learned Sentencing Magistrate rejected a submission that the period of licence disqualification should be reduced to the minimum period of 12 months, saying that "in my view, extreme circumstances would be required in order to reduce the period of disqualification which is a default period from five years down to 12 months."

20. His Honour considered the offence as being "at the upper end of severity". The potential for injury he considered to have been very, very great. Mr Dawson also knew he was not licensed to ride a motorcycle.

21. His Honour accepted that Mr Dawson needed his licence for his work.

22. His Honour then reduced the five year disqualification to a three year disqualification.

23. Mr J Sabharwal, who appeared for Mr Dawson on the appeal, applied for further evidence to be adduced under s 214 of the Magistrates Court Act. It was clear to me that the full extent of the circumstances of the offending and the effect on Mr Dawson's living had not been made clear to the learned Sentencing Magistrate.

24. Although opposed by Mr T Jackson, who appeared for the respondent, I considered that, under s 214(3) of the Magistrates Court Act, it was expedient in the interests of justice. I had regard, in this respect, to the principles I set out in Grooms v Toohey (2012) 258 FLR 261 at 266-7; [37].

25. The evidence consisted of oral evidence from Mr Dawson. In summary, he said that the occasion of his drinking in Civic on 18 February 2011 was not usual; he was celebrating a colleague's birthday. He has, since that time, taken particular care to moderate his drinking.

26. He indicated that his business circumstances had also changed. Prior to 30 June 2012, he had been in partnership. The partnership also employed a second-year apprentice to assist in its work. The apprentice principally, but, as I understand it, occasionally his partner, would provide assistance with transport when he was without a licence. This was particularly relevant because, after the analysis of the blood sample taken from him at hospital, disclosed that he may have committed an offence against s 19(1) of the Alcohol and Drugs Act, the notice under s 61B of the Road Transport Act, issued on 31 March 2011 immediately suspended his licence as noted above (at [14]).

27. I note that he, as required under that section, surrendered his licence. I also note that the immediate suspension expired on 29 June 2011 by virtue of s 61B(5)(e).

28. He and his partner, however, dissolved their partnership on 30 June 2012. As the apprentice had been indentured (if that is still the correct term) to his partner, the apprentice ceased to work with or for Mr Dawson. He explained that the procedure for transfer of the apprenticeship was such that it could not reasonably be done so as to permit Mr Dawson to retain his services.

29. Mr Dawson gave further evidence that his business, without his partner, would be challenged to justify employment of an apprentice but, because of the inevitable loss of licence (for at least 12 months: s 33(3) of the Alcohol and Drugs Act, subject to s 35 of that Act), would have to do so. The cost would not be inconsiderable, estimated at $624.31 per week, that is $32 464.22 each year, though, of course, the apprentice would be productive and assist his business as well. Nevertheless, it is a not inconsiderable impost.

30. He described his transport - a van which contains equipment but also heavy duty machines and the like which could not be transported by public transport. He explained that, while he lived in Belconnen, his work, which involved both inspection of premises for the purpose of providing quotations and attending at sites to carry out work, was in various parts of Canberra well outside the Belconnen area. He also had to attend to emergencies after hours, including at night and on weekends.

31. He presently worked six days a week, with emergency work on the seventh.

32. He noted that he had a mortgage, lease payments on his van and the various insurances required of him amounting to over $5 000 per month.

33. The offence was a serious one. The blood alcohol concentration was well above the minimum concentration for Level 4. There was, in addition, an accident. While it occurred at a pedestrian refuge island on the street, it was at an early hour on Saturday morning, about 5:30am. While there would not have been many pedestrians or drivers in the area at that time, there were, from the evidence, at least two persons driving motor vehicles past where Mr Dawson had collided at the time.

34. The learned Sentencing Magistrate was perfectly correct to view the offence as serious. There is no doubt it was. Just articulating that, however, does not justify any sentence that a court may care to impose. It still has to be just and appropriate though adequate to punish the offender: s 7(1)(a) of the Crimes (Sentencing) Act 2005 (ACT).

35. There are, of course, other purposes of sentencing that must be recognised when reflecting in the sentence imposed, as set out in s 7 of the Crimes (Sentencing) Act. These include protection of the community, preventing crime, making the offender accountable and promoting the offender's rehabilitation.

36. The prior offence of drink-driving is also to be considered. Until 1 December 2010, a person who had not been convicted of an offence of drink-driving within five years of the subsequent, relevant conviction was considered to be a "first offender" for sentencing purposes. The provision so defining "repeat offender" was then repealed by the Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT), so that conviction for a drink-driving offence at any time prior to the conviction for a subsequent offence, meant that the provisions relating to first offenders were no longer available, even if the prior conviction was many years ago.

37. The legislation itself gives no suggestion of how this change should be reflected in sentencing. Some clue is given in the following comment from the Explanatory Statement to the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010, which became the amending Act, about the charge it was making to the Alcohol and Drugs Act, namely:

amending the definition of 'repeat offender' in the Road Transport (Alcohol and Drugs) Act 1977 so that only people who have not previously been found guilty of a drink driving offence are regarded as first offenders under the Act and to ensure that the concessional treatment given to first offenders (such as lower fines, shorter period of licence disqualification and access to restricted licences) is not available to people who are found guilty again of a drink driving offence

38. In the Presentation Speech, the Attorney-General gave a more detailed and, perhaps, rather more targeted explanation of the purpose of the amendment:

As mentioned earlier, a key purpose of these reforms is to send the message that there are serious consequences if a person is caught drink driving. One of the obvious deterrents to drink driving is the potential for a drink-driving conviction to result in loss of access to a driver licence. The review of the drink-driving laws indicated that existing ACT provisions are relatively lenient compared with interstate practice in terms of enabling convicted drink drivers to continue to drive.

Under current laws, while persons who are convicted of drink driving are liable to serve a period of licence disqualification, restricted licences, sometimes known as work licences, can be applied for by some persons convicted of drink driving, to enable them to continue to drive during a period of licence disqualification. The court, in granting a restricted licence, must be satisfied that exceptional circumstances exist to justify the grant of the licence.

It is evident that a substantial number of ACT drink drivers, including offenders with previous drink-driving convictions, are successful in persuading the court that their circumstances are exceptional and are obtaining a restricted licence - 558 of these licences were issued in

2008-09. Of the approximately 1,500 people charged each year with drink driving, it would seem that around a third of them are being granted a restricted licence, rather than serving any period of licence disqualification.

It is critical to deterring drink driving that the community understands that drink-drive offenders will face appropriate consequences for their actions, including loss of the privilege of using the roads for a period of time. The rate of dispensation of restricted licences has contributed to a view in the community that a drink-driving conviction will not necessarily mean the loss of access to a driver licence.

The approach taken in this bill is to allow an application for a restricted licence only in circumstances where it is possible that a person has made an honest and genuine mistake. To achieve this, the definition of "repeat offender" has been amended. Currently a repeat offender cannot apply for a restricted licence. However, presently, the definition of "repeat offender" only applies to a person who has had a drink-driving conviction in the past five years.

The changes made by the bill will mean that a person will be a repeat offender if that person has been convicted or found guilty of a drink-driving offence at any time, no matter how long ago. A person will also be a repeat offender where two drink-driving charges are dealt with concurrently. Consequently, in the future, only genuine first offenders will be eligible to apply for a restricted licence.

(ACT, Parliamentary Debates, Legislative Assembly, 18 October 2010, 5235, Simon Corbell).

39. Taking this into account, it does not seem to me that the change is intended to override the long-standing approach to prior criminality. In the first place, of course, the Court must accept that, as in this case, the offender is, for the subsequent offence, liable under the legislation for an increased maximum penalty, to which the courts must have regard in determining the seriousness of the offence, as stated in Marakarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]-[31]. Nevertheless, the offender must be regarded as having otherwise paid the penalty for the prior offence or offences and cannot be punished for them again: Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. While relevant, the prior criminality cannot lead to a penalty disproportionate for the current offence: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477. A significant gap in offending is relevant, such that even similar offences that occur after a significant period free of crime will often be regarded less seriously: McCoy v Fenton [1960] Tas SR 149 at 154; R v Piercey [1971] VicRp 79; [1971] VR 647 at 648; R v Boyd [1975] VicRp 16; [1975] VR 168 at 171. It does not seem to me that these principles are inapplicable.

40. In this case, the prior drink driving offence was committed in 1996, that is, 15 years before. There is only one subsequent offence, a street offence for which a modest fine was imposed.

41. The serious nature of the offending was here visited with a significant fine to mark that. While the licence disqualification is a penalty, it has a protective aspect: Barac v Thexton [2008] ACTSC 137 at [47]. Thus, the Court must not simply approach the disqualification period as though it were a maximum penalty: Hugg v Driessen (2012) 60 MVR 288 at 294; [42].

42. As I said in Shires v Edwards [2011] ACTSC 132 at [82], the fact that a licence is required for employment is a relevant consideration. It can moderate the penalty so as to recognise the special situation of the offender, especially in comparison to others who may, for example, be more easily able to rely on public transport to continue their employment relatively uninterrupted. Equity in sentencing is a relevant and important value.

43. That is not to say the courts should be too ready to reduce a period of disqualification without cause. That is not the appropriate approach: Scott v Wynants (2009) 4 ACTLR 13 at 18; [32].

44. In my view, the long gap in re-offending, the need for a licence to pursue employment, the plea of guilty, the isolated nature of the drinking, balanced by the very high reading and the serious accident do require a different period of disqualification.

45. The learned Sentencing Magistrate was asked to reduce the period to the statutory minimum of 12 months from five years. His Honour said that "extreme circumstances would be required in order to reduce a period of disqualification which is a default period of five years down to 12 months".

46. It seems to me that it is unnecessary and unhelpful to confine a wide discretion in that way when no such limitation is imposed by the legislation. Certainly, a case must be made out for each reduction, but a test such as proposed by his Honour is not to be imposed on the Court's discretion and is an error.

47. In my view, a reduction in the circumstances to 20 months is appropriate.

48. I note that the 90 days suspension must be taken as having served part of that period. I also note that the Notice of Appeal was filed on 24 November 2011, such that Mr Dawson had served a period of 10 days before the suspension was stayed statutorily.

49. I shall make appropriate orders to this effect.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: ACT Director of Public Prosecutions