Dixon v David [2012] ACTSC 42

4. The circumstances in favour of the appellant were quite compelling. The blood alcohol reading was 0.061, marginally above the level which applied to him of 0.050. He was detected by virtue of a random breath test, and there was nothing about the manner of his driving which drew attention to him.

5. It was put on the appellant's behalf that he made an error of judgment arising from his failure to take account of the fact that he was drinking full-strength beer rather than light beer. While one might say that is a fairly egregious error, the honesty of the error was not challenged. It was also the case that there was likely to be relatively few other road users about at the time, which is, of course, a relevant matter.

6. The appellant had held a driver's licence for 10 years and had no prior convictions. It was his first conviction of any kind. That much was undisputed.

7. It was also put on the appellant's behalf that he, and there was evidence to support it, resided with his elderly and infirm grandfather who is incapacitated and needs to be attended to on a daily basis, often requiring the use of a motor vehicle. Of course, the effect of the sentence upon members of the family of the offender is a relevant matter to sentencing.

8. And there was, perhaps more significantly than that even, the letter from Senator Stephens indicating that she was based in Goulburn and that the appellant needed a licence to travel between Canberra and Goulburn in the course of his employment. If he could not do that, it was her suggestion that his employment with her was jeopardised. That is not to say that he would necessarily lose his employment, but it does mean that there would be some effect on the security of his employment which contrasts with his Honour's finding, brief though it may be, but nevertheless quite definitely stated, that there was no evidence that the conviction would, in effect, affect the appellant's future or his livelihood.

9. There was such evidence and his Honour might well have said: "Well I don't think without further evidence before me I could conclude that his employment would be adversely affected". But if so, his Honour did not draw that to Mr Edmonds' attention, and there was no opportunity to gain further clarification from Senator Stephens as to what it was that she meant by, 'his employment would be jeopardised'.

10. I must conclude that there was error on the part of the learned magistrate in approaching the application of the discretion to which s 17 relates. In those circumstances, I am obliged to either send it back to the Magistrates Court for the re-exercise of that discretion or to exercise it myself. I do not think anybody would suggest that the matter should be further delayed by being sent back to the Magistrates Court. I would therefore propose to exercise that discretion.

11. In all the circumstances, whilst 10 years of driving without conviction is not so compelling of itself to require the application of s 17, it is nevertheless a significant period which would not disqualify the appellant from the exercise of that discretion.

12. One then turns to the other factors which are in his favour: the low reading; the fact that there was no other road user actually put at risk; that it was unlikely in the circumstances that there was any potential risk; the fact that he needed his licence to care for an elderly relative; and that he needed his licence for his employment. Those things would favour the exercise of the discretion in his favour.

13. The only thing which might, to some extent, go against him, is the fact that his appearance did strike the investigating police officer as indicative of a moderate degree of affect of intoxicating liquor. It was certainly not minimal, as sometimes might be the case, but it certainly was not gross either. However, there is no evidence that his driving was actually affected.

14. In those circumstances it seems to me that s 17 might properly be applied. It would be also proper to ensure that it was done on the basis that the appellant was reminded, for a period of time, of his road traffic obligations. I therefore uphold the appeal to that extent, substituting a non-conviction order, dependent on good behaviour for a period of six months. I will make that from today and on condition that he attend and complete a sober driving course in the course of that six month period.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Appellant: Paul Edmonds Solicitor

Solicitor for the Respondent: Director of Public Prosecutions for the ACT