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[2026] ACTSC 279
Supreme Court of the ACT
2026-07-29
Baker J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Early v Devenish Citation: [2026] ACTSC 279 Hearing Date: 24 July 2026 Decision Date: 29 July 2026 Reasons Date: 6 August 2026 Before: Baker J Decision: See [70] Catchwords: APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal from sentence – drink driving and driving while disqualified as a repeat offender – whether error in discount applied for pleas of guilty – whether Magistrate considered alternatives to full-time imprisonment – whether sentence manifestly excessive – no error established in Magistrate’s reasons – appeal dismissed Legislation Cited: Crimes (Sentencing) Act 2005 (ACT), ss 10, 29(1)(b), 78(6), 80(1) Magistrates Court Act 1930 (ACT), Pt 3.10 Road Transport (General) Act 1999 (ACT), s 65 Cases Cited: Agarwal v Coutts (No 2) [2024] ACTSC 92 Blundell v The Queen [2019] ACTCA 34 Bugmy v The Queen [2013] HCA 37, 249 CLR 571 Field v Unas [2019] ACTSC 13 Hawker v The Queen [2020] ACTCA 40 House v The King [1936] HCA 40; 55 CLR 499 McBride v The King [2025] ACTCA 16; 22 ACTLR 119 Miller v The Queen [2018] ACTCA 21 R v Ang [2014] ACTCA 17 Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303; 61 NSWLR 305 The King v HCZ [2026] HCA 24 Williams v The Queen [2018] ACTCA 4 Parties: Andrew David Early (Appellant) Brianna Devenish (Respondent) Representation: Counsel C Muthurajah (Appellant) J Melloy (Respondent) Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: SCA 42 of 2025 Decision Under Appeal: Court: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 20 October 2025 Case Title: Police v Early Court File Numbers: CAN 419 of 2025 CAN 3378 of 2025 BAKER J: Introduction
On 20 October 2025, the appellant was sentenced in the Magistrates’ Court for an offence of driving with a prescribed concentration of alcohol (level 4) as a repeat offender (CC2025/419) (drink driving offence), and an offence of driving while disqualified as a repeat offender (CC2025/3378) (driving while disqualified offence).
This was not the first time that the appellant had come before a court for driving offences. He has a number of convictions in both the ACT and New South Wales for offences of drink driving and driving while disqualified, including a previous level 4 conviction in 2022.
For the offence of drive while disqualified, the Magistrate sentenced the appellant to a term of imprisonment of four months and fifteen days. For the drink driving offence, the Magistrate sentenced the appellant to a term of imprisonment of five months. The sentences imposed were partially concurrent. His Honour ordered that both sentences be suspended on 19 January 2026, upon the appellant entering into a good behaviour order (GBO) for a period of 24 months. The appellant’s licence was suspended for a further period of 24 months, and an additional order was made under s 65 of the Road Transport (General) Act 1999 (ACT) suspending the appellant’s licence until otherwise ordered by a court.
The appellant appeals against these sentences on the following grounds: (a) The Magistrate erred by not making the sentences of imprisonment fully concurrent; (b) The sentences imposed by the Magistrate were manifestly excessive; (c) The Magistrate erred by not appropriately considering alternatives to full-time imprisonment; (d) The Magistrate erred in applying the sentence discount in respect of CC2025/419.
On 29 July 2026, I delivered orders dismissing the appeal, and varying the sentences imposed to take account of the time served by the appellant prior to the grant of bail on 7 November 2025.
My reasons for so determining are set out below. Background
The offences
At approximately 9:32pm on 23 October 2024, whilst conducting a mobile patrol, police observed a black Volkswagon travelling west on Cotter Road in Weston. The Volkswagon was travelling erratically, momentarily mounting the median strip before realigning in the right-hand lane.
Police activated their emergency lights and the Volkswagon pulled over to the side of the road. The appellant identified himself as the driver. He told police that he was driving from his home to Denman Prospect. He denied consuming any alcohol before being pulled over, and asserted that he had only had mineral water.
The appellant appeared to be highly affected by alcohol, slurring and laughing during his interaction with police. Police gave the appellant a breath test, which returned a positive result. Police observed that the appellant’s passenger was also highly intoxicated.
Police conducted a licence check, and found that the appellant was disqualified from holding or obtaining a drivers’ licence for a period of six years, ending on 9 May 2028, pursuant to an order made in the ACT Magistrates Court on 10 May 2022.
The appellant was taken into custody and driven to Woden Police Station. At about 10:20pm, the appellant provided a breath sample, which indicated a result of 0.232, being a level 4.
At the time that the appellant was pulled over by police, he was driving on a poorly lit street. The weather was fine and the bitumen road surface was dry and in good condition. Police described the vehicle and pedestrian traffic as “medium”.
The appellant’s prior criminal history
The proceedings in the Magistrates Court
The appellant was first summoned for the relevant offences before the Magistrates Court on 27 March 2025. On 17 April 2025, the appellant entered a plea of not guilty in relation to the drink driving offence. That matter was listed for hearing on 1 August 2025. No plea was entered in relation to the drive while disqualified offence. On 28 July 2025, the appellant entered pleas of guilty to both charges and the hearing for 1 August 2025 was vacated.
The matter was listed for sentence before the Magistrate on 20 October 2025. The evidence tendered in the sentence proceedings consisted of the agreed statement of facts; the appellant’s criminal history; a CADAS and Interlock Report dated 20 August 2025; an Intensive Correction Order Assessment Report (ICOAR) dated 16 October 2025; a letter of apology of the appellant; a letter of confirmation of enrolment in Karralika; and three letters of support written by close friends of the appellant.
In her oral submissions, the appellant’s counsel informed the Magistrate that the appellant was a 45-year-old self-employed businessman, who employed 25 staff, and was a valued and contributing member of the community. She told the Magistrate that the appellant is the father of a thirteen-year-old son, whom he co-parents with his ex-wife. She also informed the Magistrate that the appellant is in a stable and loving relationship with his new partner, and that the appellant and his partner are together raising his partner’s children (aged 10 and 12) with the appellant’s son in a blended family. The appellant’s counsel submitted that the family’s financial stability would be adversely affected if the appellant were to be incarcerated.
The appellant’s counsel explained that the afternoon of the offending had been emotionally charged, as the appellant’s friend had unexpectedly confided to the appellant about the breakdown of his marriage. The appellant had been very upset for both his friend and his friend’s partner.
The appellant’s counsel referred to the character evidence before the court and the evidence of the appellant’s sincere apology. She informed the Magistrate that the appellant had taken action to decrease his alcohol intake. She said that he was “willing to commit to a zero alcohol approach if required”. She referred to the counselling and other courses that the appellant was attending.
The appellant’s counsel acknowledged the appellant’s longstanding alcohol issues, which had commenced when he was a teenager. She also acknowledged that this was the appellant’s fourth drink driving conviction and his third conviction for driving while disqualified within a seven-year period. However, she continued, the appellant had been assessed as being of low risk of general reoffending, and had been deemed suitable for an Intensive Correction Order (ICO). She submitted that, taking into account the appellant’s early guilty plea, genuine remorse and prospects of rehabilitation, it would be appropriate for the Magistrate to either impose a longer suspended sentence than had been previously imposed, or impose an ICO with an integrated rehabilitation condition.
In his submissions in reply, the prosecutor noted that the appellant’s blood alcohol concentration was 0.232, which was well above the level 4 threshold of 0.15. He acknowledged that a “degree of concurrency” was required for the sentences for each of the two offences, but submitted that the offence of driving while disqualified was an example of “contumacious offending”, which involved a blatant disregard for the authority that imposed the disqualification.
The prosecutor also noted the appellant’s criminal history, which included five previous drink driving offences, of which the last two were level 4. In particular, the prosecutor noted the appellant’s two month suspended term of imprisonment in 2022 for his most recent level 4 offence. The prosecutor submitted that the previous leniency shown by the Court had “not had the desired effect as specific deterrence … to stop the [appellant] from further offending”.
The prosecutor noted that the timing of the appellant’s guilty pleas had required a brief of evidence to be prepared, but accepted that in circumstances where the matter had not proceeded to hearing, there was “still substantial utilitarian value in both pleas”.
The prosecutor submitted that specific and general deterrence, denunciation and the protection of the community should weigh heavily in the sentence imposed. In particular, the prosecutor submitted that, having regard to the previous sentences that had been imposed and the lack of deterrent effect that those sentences had had on the appellant, the sentence to be imposed should be one that “sends a clear message to this defendant as to the court’s stance on those defendants that fail to abide by its orders, that being those defendants that show a contumacious disregard for its orders”.
In concluding, the prosecutor submitted that the appellant “should not have been driving in any case, let alone with a level 4 prescribed concentration of alcohol in his breath”. He submitted that “an immediate term of fulltime detention is on the cards”, and that such an outcome “may be one that your Honour finds necessary to impose today to have regard to the appropriate level of specific deterrence required”.
The Magistrate’s decision
The Magistrate delivered ex tempore reasons immediately following the parties’ submissions.
In those reasons, the Magistrate commenced by correctly recording the applicable maximum penalties for each of the offences, and the applicable disqualification periods. The Magistrate then briefly summarised the facts that gave rise to the offending. As to the objective seriousness of the offences, his Honour held: The PCA [drink driving] offence is clearly a serious example of it. The reading was very high at 0.232. As I said, the driving was erratic, including mounting a medium strip, and he had a passenger in the car. In my view, it is concerning that he told the authors of the CADAS report that he considered that he was fine to drive, [this] indicates, in my view, or emphasises a lack of insight into his propensity to drink and drive or his capacity to do so. The driving while disqualified is also a serious example of that offence. As I said, being disqualified two years previous for a period of six years, he had a long time to go. There was no good reason for him to drive. It was his fourth drive while disqualified. I agree with [the prosecutor] that there is a blatant disregard for the court’s order that it made in 2022.
The Magistrate then turned to the appellant’s subjective case. His Honour found that the appellant’s criminal history “exhibits the lack of regard he has for court orders and for his driving obligations in general”.
On the other hand, his Honour also noted that the appellant had a “number of prosocial factors”, including his employment and his family responsibilities. His Honour also referred to the volunteer work performed by the appellant, which included providing financial aid in Vanuatu. His Honour accepted that the appellant was well supported in his commitment to address his offending, and, in this respect, referred to the courses undertaken by the appellant, as well as the support of the appellant’s family and friends.
His Honour then continued: Against that, there is a long-term pattern of alcohol misuse, increasing use from 15 or 16 years of age. While he has reduced his alcohol consumption since the last incident, the fact that he still drinks three to four times a week from a glass to a bottle at a time does suggest to me that he’s got a long way to go in understanding the minimising alcohol consumption for him given the offences that he’s committed. The fact that he moved to a residence that he could [walk] to work, on one view, shows a proactive attitude but on another, demonstrates a lack of confidence that he seems to have in himself not to drink and drive. He says he is ashamed, says he’s turning [his] life around and says he won’t drink and drive again. I’m pretty sure he would have committed not to drink and drive again in 2022. If he didn’t, that’s a real concern as well.
The Magistrate accepted that incarceration would have “obvious significant impacts for [the appellant’s] family in particular”, but also noted that the appellant’s ex-wife would be able to look after his son on a full-time basis. His Honour also observed that, “while not ideal, [the appellant’s workplace] is able to manage without him being there”.
The Magistrate recorded that he would afford a 25% discount for the appellant’s early plea of guilty for the driving while disqualified offence, and a discount “approaching 20 percent” for the plea of guilty for the drink driving offence.
The Magistrate accepted that specific and general deterrence were both important sentencing considerations. Noting that the offences involved both risk to the community and a lack of adherence to court conditions, the Magistrate found that accountability, denunciation and protection of the community were also matters to be given weight in determining the sentences to be imposed. The Magistrate held that the s 10 threshold was crossed, and that no sentence other than of imprisonment would satisfy these sentencing purposes.
His Honour then considered the appellant’s submission that the sentence should be served by way of an ICO or a suspended sentence. Noting that the appellant had “not learnt” from his previous community-based sentence, his Honour held that “immediate incarceration” would be the only sentence that would achieve the purposes of sentencing, “particularly specific deterrence”.
The Magistrate accordingly imposed the following sentences: (a) In relation to charge CC2025/3378 (drive while disqualified), a term of imprisonment of four months and 15 days, reduced from six months on account of the appellant’s plea of guilty, commencing on 20 October 2025 and ending on 6 March 2026. The sentence was to be suspended after a period of three months on the appellant entering into a 24-month GBO. The appellant’s licence was also disqualified for a period of 24 months, commencing on 10 May 2028 (as his disqualification for a previous offence ends on 9 May 2028). His Honour also made an order that the appellant will continue to be disqualified from the end of that period until the disqualification is set aside under s 65 of the Road Transport (General) Act 1999. (b) In relation to charge CC2025/419 (drink driving): imprisonment for five months, reduced from six months for the plea of guilty, commencing on 7 December 2025 and ending on 6 May 2026. The sentence was to be suspended from 19 January 2026, the same date as the above sentence, again on the condition the appellant enter into a 24-month GBO.
Jurisdiction
This Court has jurisdiction under Part 3.10 of the Magistrates Court Act 1930 (ACT) to hear an appeal against any sentence or penalty imposed by the Magistrates Court.
The principles to be applied by this Court when exercising this jurisdiction are well-established. As the appeal is against a discretionary sentencing decision, the appellant must demonstrate error of the kind described in House v The King [1936] HCA 40; 55 CLR 499: see The King v HCZ [2026] HCA 24 at [31]. Accordingly, the appellant must demonstrate that the Magistrate: (i) acted upon a wrong principle; (ii) allowed extraneous or irrelevant matters to affect the decision; (iii) mistook the facts; (iv) failed to take into account some material consideration; or (v) made a decision that was unreasonable or plainly unjust [ie imposed a sentence that was manifestly excessive]: HCZ at [30]. Determination
Outline
The appellant was granted leave to amend the notice of appeal at the hearing of the appeal in this Court on 24 July 2026. The amended grounds of appeal are set out at [4] above. At the outset of her oral submissions, the appellant’s counsel advised that appeal ground (a) (which alleged that the Magistrate erred by not making the sentences of imprisonment fully concurrent) was not pressed as a ground of review in its own right, but rather, that this contention should be understood as a particular of the allegation that the sentence imposed was manifestly excessive (appeal ground (b)).
The remaining grounds of appeal respectively concern the discount that was applied to the drink driving offence in recognition of the appellant’s plea of guilty; the Magistrate’s consideration of alternatives to full-time imprisonment; and the appellant’s ultimate contention that the two sentences imposed were each, and cumulatively, manifestly excessive. These grounds of appeal are each addressed below.
The Magistrate erred in the discount that was applied with respect to CC2025/419
The Magistrate’s findings concerning the discount to be applied in recognition of the appellant’s guilty pleas were as follows: The [appellant] entered an early plea of guilty in relation to the drive while disqualified and I will afford a 25 percent discount for that plea. The plea to the PCA [drink driving] charge came after a plea of not guilty was entered and the brief prepared, but I agree that there is significant utility in his plea and a discount approaching 20 percent will be allowed.
Later in the judgment, the Magistrate indicated that the starting point of the sentence to be imposed for the drink driving charge (CC2025/419) was 6 months, and that following the application of the discount, the sentence to be imposed was 5 months. The percentage reduction was therefore 16.7%.
In the written submissions, the appellant’s contention concerning the discount was that there had been an arithmetic error in the calculation of the discount for the drink driving charge, as the discount afforded for that charge was less than 20%. However, in oral submissions, counsel for the appellant acknowledged that the Magistrate had only held that a discount “approaching” 20% would be afforded. In those circumstances, the appellant’s counsel clarified that the contention advanced was that a discount of at least 20% should have been given for that charge.
However, as the prosecutor submitted, the extent of any discount to be applied is a matter of discretion, albeit one that should be consistently applied: Williams v The Queen [2018] ACTCA 4 at [47]; Blundell v The Queen [2019] ACTCA 34 at [7]-[8]; Miller v The Queen [2018] ACTCA 21 at [77].
As the Magistrate found, the appellant’s guilty pleas were each of significant utilitarian value, as they avoided the need for a contested hearing and saved court time. Notwithstanding this, it must also be borne in mind that the pleas were entered only four days before the hearing was listed. The ability of the Magistrates Court to reallocate the time set aside for hearing to another case or cases was limited by the lateness of the pleas. In those circumstances, his Honour did not err in failing to afford a higher discount for the drink driving offence. Rather, the 25% discount afforded by the Magistrate for the drive while disqualified offence was generous.
Accordingly, this ground of appeal must be dismissed.
The Magistrate erred by not appropriately considering alternatives to full-time imprisonment
The approach that is required to be taken by the Court where a sentence of full-time imprisonment is imposed is well-established. As Murrell CJ held in Field v Unas [2019] ACTSC 13 at [19]-[20], it is necessary for the Court to proceed in two stages: first, a determination must be made as to whether it is necessary to impose a sentence of imprisonment (s 10 of the Crimes (Sentencing) Act 2005 (ACT)); second a determination must be made as to the manner in which that sentence must be served.
As observed above, the Magistrate held that the s 10 threshold had been crossed, and that no sentence other than one of imprisonment could meet the purposes of sentencing. The Magistrate then continued: The defendant says that that [sentence of imprisonment] could be served by ICO for which he’s been found suitable or by a suspended sentence order, and the fact that he did not reoffend while on his previous suspended sentence order shows that he can comply. In my view, they are not the appropriate sentencing outcomes here. He was given the opportunity of a community-based order previously and he has not learnt from that. The next level, unfortunately for the defendant, is immediate incarceration and that is the only sentence, in my view, that will achieve the purposes of sentencing, particularly specific deterrence.
In support of this ground of appeal, the appellant made five related submissions. First, the appellant contended that the Magistrate failed to undertake a “real engagement” with the appellant’s subjective factors (other than his criminal history) when determining the manner in which the sentence should be served. In particular, the appellant contended that his Honour “failed to have proper regard to the fact that the appellant had completed a suspended sentence and had complied with a good behaviour order demonstrating an ability to comply with court orders”.
Second, the appellant also contended that the Magistrate had erred in stating that the “next level is immediate incarceration”. The appellant submitted that the “next step” for the drink driving offence should have been a supervised community-based order with conditions that focussed on the appellant’s rehabilitation.
Third, the appellant contended that the Magistrate erred by not separately considering the manner in which the sentences should be served.
Finally, the appellant referred to s 78(6) of the Sentencing Act, which states that the Court must record reasons for a decision to decline to make an ICO for an offender if an ICO assessor recommends that the offender is suitable for an ICO. In this respect, the appellant submitted that the Magistrate did not provide adequate reasons as to why an ICO was not imposed, and that the Magistrate placed “disproportionate weight” on the appellant’s criminal history.
When assessing each of the appellant’s contentions concerning this ground of appeal, two matters must be borne firmly in mind. The first is that the weight to be given to different considerations in a sentence is a matter of discretion for the sentencing judge: Bugmy v The Queen [2013] HCA 37, 249 CLR 571 at [24]; R v Ang [2014] ACTCA 17 at [22]. A complaint about the weight given to a relevant consideration cannot establish a ground of appeal which alleges patent error in the sentence imposed. Such a complaint can only found a particular of a claim that the sentence imposed was manifestly excessive.
The second concerns the approach that must be taken by this Court when assessing ex tempore sentencing decisions of the Magistrates Court. Specifically, as I noted in Agarwal v Coutts (No 2) [2024] ACTSC 92 at [37]: The giving of ex tempore reasons is both admirable and productive. It enables cases to be determined quickly, and is particularly important in courts of high volume, such as the Magistrates Court. However, the task is not easy. It requires the decision maker to mentally synthesise a variety of considerations, whilst simultaneously expressing those considerations in oral form. Given these pressures, it is unsurprising that “[e]x tempore judgments not infrequently lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing”. The authorities which speak of the allowance that should be given to ex tempore reasons recognise and give weight to this reality. (Citations omitted.)
When the reasons are read fairly, and as a whole, it is clear that the Magistrate approached the sentencing task in the manner required by authority. The Magistrate first considered whether the s 10 threshold had been crossed, such that no sentence other than imprisonment was appropriate. The Magistrate answered this question in the affirmative. No challenge has been made to this aspect of the Magistrate’s reasons. The Magistrate then expressly considered the appellant’s contention that the sentence should be served by way of a suspended sentence or an ICO. The Magistrate rejected that contention, finding that neither option was “appropriate”, particularly because neither option would meet the need for specific deterrence.
As outlined below, that need was significant, having regard both to the nature of the offending, and the appellant’s prior criminal history. Given the risks posed by the repeated offending of this nature, it was open to the Magistrate to conclude that a period of full-time imprisonment would achieve a level of specific deterrence which could not be achieved by a supervised community-based sentence. Further, although the appellant had not breached the terms of his suspended sentence, he had driven a vehicle in breach of a court-imposed licence disqualification period. In these circumstances, the suggestion that the appellant had demonstrated an ability to comply with court orders is not entirely accurate.
The contention that the Magistrate erred in finding that the “next level” was immediate incarceration must also be rejected. Read in context, it is clear that the Magistrate was simply observing that, in circumstances where an alternative to full-time imprisonment had not been successful in achieving a cessation of serious offending, the imposition of a further community-based sentence would not properly meet the need for specific deterrence.
The appellant’s contention that the Magistrate erred by not separately considering the manner in which the sentences should be served must also be rejected. On a fair reading of the reasons, the Magistrate’s primary concern was with the drink driving offence. An offender cannot be sentenced to an ICO or a suspended sentence whilst the offender is serving a sentence of full-time imprisonment: ss 29(1)(b) and 80(1) of the Sentencing Act. Accordingly, once his Honour concluded that the purpose of sentences for the drink driving offence could only be met by a sentence of full-time imprisonment, it followed that a sentence of full-time imprisonment was also required for the drive while disqualified offence.
In summary, the Magistrate’s reasons demonstrate that his Honour gave consideration to, and rejected, the submission that the appellant should be sentenced to an alternative to full-time imprisonment. Accordingly, this ground of appeal must be dismissed. The sentence imposed was manifestly excessive
The principles to be applied when considering a contention that a sentence imposed is manifestly excessive were summarised in Hawker v The Queen [2020] ACTCA 40 at [14] as follows: … Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge, or where the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons. (references omitted).
The maximum penalties for the offences for which the appellant has been sentenced are: (a) For driving with a prescribed concentration of alcohol (level 4) as a repeat offender: 150 penalty units, imprisonment for 18 months or both (b) For driving while disqualified as a repeat offender: 100 penalty units, imprisonment for one year or both.
The Magistrate was correct to find that each offence was a serious example of its kind. In respect of the drink driving offence, the appellant was heavily intoxicated (as demonstrated by the high reading and the officers’ observations), the appellant had a passenger in the car and his driving was erratic, giving rise to real risk of harm, both to his passenger and to other road users. In respect of the drive while disqualified offence, it is significant that the appellant had been disqualified from driving two years earlier for a period of six years. It was well open to find that the offending demonstrated a blatant disregard for court orders.
The dangers associated with drink driving are well recognised. As Howie J observed in Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303; 61 NSWLR 305 at [7]: [The offence] commonly referred to as, “drink-driving” amounts to socially irresponsible behaviour of a very significant degree having regard to the potential consequences of any driver on a public road being unable to properly manage and control a motor vehicle.
It was well open to the Magistrate to place significant weight on the appellant’s criminal history when determining the sentences to be imposed for both offences. As the prosecutor submitted, this was the appellant’s sixth conviction for a drink driving offence, his fourth conviction within seven years, and his third conviction for a high range offence within that same seven-year period. Given this history, the need for denunciation, general and specific deterrence and protection of the community was particularly pronounced.
The appellant tendered statistics which demonstrated that only 2% of offenders have received a term of full-time imprisonment for drink driving offences. The limits of such statistics are particularly acute in the present case. It is not possible to ascertain whether the offenders who received sentences other than full-time custody had similar criminal histories to the appellant. In the absence of this information, the statistics cannot support the appellant’s claim that the sentences imposed were manifestly excessive.
There are aspects of the appellant’s case which bode well for the future. He is in a supportive relationship, he is a parent to three children, he is employed, he is remorseful and he has commenced participating in rehabilitation programs (including SMART Recovery and Alcoholics Anonymous). Nonetheless, given the appellant’s criminal history, it was open to the Magistrate to regard the appellant’s commitment to his rehabilitation with some caution. This was particularly so where, as noted by the Magistrate, the appellant continued to drink alcohol after the offending, some three to four times per week, from a glass to a bottle at a time.
The appellant’s contention that the Magistrate erred by not imposing sentences that were fully concurrent must also be rejected. Whilst the offending involved a single course of conduct, the two offences encompassed distinct, albeit overlapping criminality, namely the appellant’s decision to drive with a level of alcohol in his body, and the decision to drive while disqualified from holding a licence. It was appropriate for the Magistrate to impose an overall term of imprisonment which separately recognised the distinct but overlapping criminality of each offence, by partially accumulating the sentence to be imposed for the drive while disqualified offence upon the sentence to be imposed for the drink driving offence.
The appellant has not established that either the individual sentences or the overall term imposed were manifestly excessive. Nor has the appellant demonstrated that the Magistrate’s decision that a period of full-time imprisonment was required was not open. Accordingly, this ground of appeal must be dismissed.
Conclusion
For the reasons outlined above, the appellant has not demonstrated that there is any error in the Magistrate’s reasons. The appellant has also not demonstrated that the sentences imposed are manifestly excessive. It follows that the appeal must be dismissed.
The appellant was taken into custody immediately following the Magistrate’s decision on 20 October 2025. The appellant was then granted bail on 7 November 2025. Prior to the grant of bail, the appellant served 19 days in custody. The sentence must be varied so as to take account of the period of custody for which the appellant was granted bail. The sentence will be backdated to account for the period of custody served prior to the grant of bail.
Further, the original sentence that was imposed encompassed some shorter calendar months. The sentence will be backdated so as to ensure that the appellant is not disadvantaged by reason of his having lodged an unsuccessful appeal.
Orders
I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker. Associate: Date:
Early
Devenish