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[2012] ACTSC 71
Supreme Court of the ACT
2012-05-08
Nield AJ
Original judgment source is linked above.
1. This is an appeal from a decision of the Chief Magistrate, convicting the appellant of the offence of having driven the vehicle on a road with the level 4 prescribed concentration of alcohol in his breath, and fined him $750, ordered that he pay court costs of $67 and criminal injuries compensation fund contribution of $50, making a total of $887, in respect of which she allowed him seven days for payment, and disqualified him from holding or obtaining a driver's licence pursuant to the relevant legislation for the period of 18 months, which, taking into account the period of his suspension from holding or obtaining a driver's licence, started on 21 August 2011.
2. On 21 August 2011 the appellant, Trent Flanigan, was stopped by police whilst driving a motor vehicle on Gossard Street in Gungahlin in the ACT. He was stopped for a routine breath test. The appellant appeared to police to be moderately affected by alcohol.
3. In due course, breath analysis revealed that he had 0.154 grams of alcohol per 210 litres of breath. Thus, he had what is known as a level 4 breath alcohol concentration. Accordingly, he was charged with having driven the vehicle on a road with the level 4 prescribed concentration of alcohol in his breath.
4. In due course, on 1 November 2011 the appellant appeared in the Magistrates Court before the Chief Magistrate to answer the charge. He pleaded guilty to the charge. He was represented by his solicitor, Mr Edmonds. The Chief Magistrate received the statement of facts from the Prosecutor and a number of testimonials related to the appellant from his solicitor.
5. The Chief Magistrate gave her decision immediately. The Chief Magistrate convicted the appellant of the offence, fined him $750, ordered that he pay court costs of $67 and criminal injuries compensation fund contribution of $50, making a total of $887, in respect of which she allowed him seven days for payment, and disqualified him from holding or obtaining a driver's licence pursuant to the relevant legislation for the period of 18 months, which, taking into account the period of his suspension from holding or obtaining a driver's licence, started on 21 August 2011.
6. The following day, 2 November 2011, the appellant appealed from the Chief Magistrate's decision to this court. The grounds of appeal are two, being (1) that the sentence was manifestly excessive, and (2) that the Chief Magistrate erred in her approach to setting the length of the disqualification period.
7. Yesterday, 7 May 2012, I heard the appellant's appeal. I was concerned, having heard from the appellant's solicitor, that I did not have the appellant's driver's record. I was surprised that the appellant's driver's record was not presented as evidence before the Chief Magistrate, as, I ask myself rhetorically, how otherwise can a decision be made as to a person's driving offence if all of the material, including, relevantly, the person's driver's record, is not presented to the court. If it should be that the person's driver's record is one without any driving offence, then the person would suffer a light penalty with a short period of disqualification, but if, on the other hand, the person's driving record revealed as this appellant's record reveals, a number of offences in a relatively short period with a number of demerit point suspensions of the driver's licence within that period, then the penalty would be more severe and, of course, the period of disqualification would be longer.
8. In the present appeal, I was concerned yesterday that the period of disqualification might be excessive, because, if the appellant were a driver without any driving offences, then a period of disqualification closer to the minimum period, rather than half of the automatic period, would be appropriate. However, as revealed today, the appellant's driving record is such that it could not be argued, and indeed Mr Edmonds does not argue, that a disqualification period closer to the minimum period would be appropriate.
9. All that said, if anything brings home to a driver that a driver's licence is a privilege and not a right, it is disqualification from holding or obtaining a driver's licence. I expect that the period of disqualification proposed by Mr Edmonds and considered by me to be appropriate, that of 12 months, will well and truly bring home to the appellant that holding of a driver's licence is a privilege and not a right.
10. I consider, notwithstanding the appellant's driving record, which I consider to be a poor one, that disqualification for 12 months is appropriate and that for 18 months is excessive.
11. Accordingly, I allow the appeal. I reduce the period of disqualification from 18 months to 12 months. The period of disqualification is reduced by the period during which the appellant's licence was suspended.
I certify that the preceding (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield
Solicitor for the Applicant: Paul Edmonds & Associates
Solicitor for the Respondent: ACT Director of Public Prosecutions
Flanigan
Cook [2012] ACTSC 71