Hamilton v Spalding [2010] ACTSC 160

2. It is to be noted that the fine was the maximum stipulated in the legislation, but that has not been the subject of submissions in this appeal. The submissions have centred upon the period of disqualification.

3. By way of background, on 22 October 2008 the appellant was convicted on a charge of driving with more than the prescribed content of alcohol. He was disqualified from holding a licence for a period of 12 months. At the expiration of that period he obtained a provisional licence, which he still held at the time of this offence, namely 28 May 2010. On this occasion, he had been drinking with a friend at his home. He wanted more beer, so he drove to the local shopping centre. En route, he was subjected to a random breath analysis, which showed a reading of 0.083 grams of alcohol in 100 millilitres of blood.

4. Given the appellant's previous history, this was a level three content of alcohol and, as such, the statutory period of disqualification is three years. It is to be noted that as the holder of a probationary licence, he was restricted to a blood alcohol level of 0.02 grams of alcohol per 100 millilitres of blood at the time of this offence.

5. Mr Sabharwal's primary contentions on behalf of the appellant relate to his need to have a licence for the purpose of his employment. He is currently working as a mobile crane driver. Before her Honour the magistrate, there were a number of references, one of them from his employer, which said:

I value Kenny as an employee and Kenny values his job greatly, as this is his only income. I hope the presiding magistrate can take all these factors into consideration and grant Kenny with a work permit.

6. Other references refer to the difficulties that a loss of licence would create to his employment, one of them referring to the fact that he needs a licence to get him to and from work, and another referring to his employment as a mobile crane driver being in jeopardy. I think that there is sufficient material in these references for an inference to be drawn that his continued employment is dependent, at least to a significant extent, upon his having a driver's licence.

7. Ms Case, who appears for the respondent, has pointed out that it was essentially during submissions before the magistrate that references were made to the appellant's need to have a licence for the purposes of his employment. However, in the circumstances, I consider that there was sufficient evidentiary material before the magistrate for this to become a relevant matter on sentence.

8. Considerable emphasis has been placed on the judgment of Higgins CJ in Scott v Wynants [2009] ACTSC 62, which referred extensively to the guideline judgment of the New South Wales Court of Criminal Appeal in relation to prescribed content of alcohol offences, that is in Re Attorney-General's Application (No 3 of [2004] NSWCCA 303; 2002) 61 NSWLR 305. Emphasis was made by Howie J in that case, that the statutory period of disqualification is not the maximum, but the normal period, and that good reason needs to be shown before that period should be varied in any way.

9. It is of course relevant to take into account the degree of intoxication of the person and the manner of their driving. In this case, the appellant's reading put him only just into the category three. He was still within it, undoubtedly so, but the fact that he was not significantly within it, is clearly a relevant matter when considering whether he is otherwise entitled to call of leniency from the court. As for the manner of his driving, it was a random breath test, therefore he came to the attention of the authorities, not because of any dangerous aspect to his driving. He was, on all accounts, cooperative throughout.

10. That, by itself, provides no reason to reduce the automatic period of disqualification, as Howie J emphasised in the guideline judgment. However, the fact that there is evidence that the appellant's continued employment is in jeopardy without a driver's licence is a relevant matter which can, in certain circumstances, in my view, justify a reduction in the normal statutory period of disqualification. I consider that those circumstances exist here, given that the appellant's reading was in the lower range of culpability for a level three offence.

11. It is also highly relevant that, before the PCA offence of October 2008, which created the statutory disqualification of three years in this case, he had had no conviction of any kind for a period of 20 years, since 1990.

12. I propose to give him the benefit of these matters, and particularly having regard to his employment difficulties without a licence, to reduce his period of disqualification to two years. Accordingly, I allow the appeal. I confirm the fine imposed by the learned magistrate, but in lieu of the period of disqualification, I order that the appellant be disqualified from driving for a period of two years, to commence on 22 September 2010.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Mathews.

Solicitor for the Respondent: Director Public Prosecutions for the ACT