Hammond v Yates [2012] ACTSC 195

3. It is an area that carries with it a great risk, not only to himself but also to other members of the public, and as such, the courts must take effective action to ensure that such offending is not repeated. I think Mr Hammond himself recognises that, because on every occasion in the past when he has been so convicted, he has for a time thereafter maintained a period of non-offending. Furthermore, it seems that he has, in recognition of his underlying problem undertaken some measures to endeavour to avoid re-offending, which, regrettably though, after a period of time, have not borne fruit.

4. He was on a previous occasion asked to accept the supervision of Corrective Services, including programs as to drink-driving, which he did undertake. That was with a view to reducing the risk of re-offending. Unfortunately, that did not work, at least not in the longer term, which is the objective that needs to be addressed in terms of his punishment. It may be that the only punishment available for an offender such as Mr Hammond ultimately is a period of imprisonment, simply because nothing else works, and there is a period of 12 months of imprisonment which was available in this case.

5. The learned magistrate in the course of sentencing, and this is a complaint made in the notice of appeal, did note the fact that he had pleaded guilty, did note the fact that there were ameliorating personal circumstances, did note that he had undertaken some remedial behaviour in the interim period, but balanced, as against that, a comment that the prosecution's case was very strong. Indeed it was, of course, because in this class of case, the prosecution case needs only a conjunction of observation of driving and then within the statutory period thereafter, a level of blood alcohol as measured by breath analysis of more than 0.05, of which this was an egregious example.

6. So the prosecution case was, of course, strong, but that did not mean that there was no purpose to be served by the plea of guilty. Indeed, it has already been conceded by Ms Hunter that it did serve a utilitarian purpose, and that is recognised by the courts as having some value and requiring it to be taken into account, obviously in reduction of the sentence that otherwise would be imposed.

7. Her Honour otherwise dealt with the matter appropriately. She did point out to herself that Mr Hammond had had the benefit of every sentence in the past that was available, other than a custodial sentence, and indeed, that was put by Mr Thomas.

8. It did not follow from that, of course, that there should be an immediate imposition of a sentence of imprisonment which would be served without either suspension or periodic detention or the like. Indeed, it was put by Mr Thomas for the prosecution that periodic detention was not outside the range. That might well be the case. I do pause to note that if there were any aggravating circumstances particular to this driving on this occasion, that would certainly enliven, and indeed, one would say point to, either periodic detention or perhaps some period of fulltime imprisonment, with or without periodic detention. And it is certainly true that every other penalty has been imposed that is otherwise available.

9. As I say, it was undoubtedly an error for her Honour not to have indicated what the penalty would have been but for the plea of guilty, and indeed, it might be said too that there is not just a plea of guilty in this case, but there does seem to be genuine remorse, and a desire to make amends on the part of Mr Hammond. That is not, of course, the first time that he has so presented. As I indicated, perhaps in argument, good intentions are one thing; it is actions that count more. But in any event, there is that degree of remorse and desire to undertake rehabilitative efforts, which did also require some recognition.

10. It seems to me that the appropriate recognition in all the circumstances, given the nature of the offending and the record of offending that Mr Hammond had, the available penalties, that it would have been appropriate to take a 20 per cent reduction into account.

11. That could apply in this case only to the question of either a period of supervision and/or a period of imprisonment. I do not believe that the period of disqualification is to be viewed in the same way. The reason for that is that it is not a maximum penalty, despite what Mr Davies might have urged upon me. It is a default penalty in the absence of any good reasons to the contrary. A good reason to the contrary may lead to the increase in that particular default provision, or it may lead to a reduction. In this case, there was nothing in the offending behaviour or record of Mr Hammond, or, despite the fact of his remorse and other history, any reason to reduce it.

12. Nevertheless, it does have an effect, and I would have thought that but for his plea of guilty and remorse, it would have been appropriate to impose a period of supervision of approximately two years, and to reduce that to 18 months would be appropriate. It was 18 months that her Honour imposed. Despite the fact that her Honour did not specify that which was to be taken into account and the degree of it, I do not think that is in error.

13. As to the six months' suspended sentence to be served by way of periodic detention, it does seem to me that it was probably unnecessary, and certainly not a last resort, to have gone to periodic detention without first attempting a period of suspension on terms to be of good behaviour.

14. I note that Mr Hammond has served two periods of detention, and I propose by way of upholding this appeal and resentencing him, to take that into account. It seems to me that it would have been appropriate to impose a period of suspended sentence of five months instead of the six, which, I would propose, having regard to the fact that two periods of detention have been served, should be converted now into four months' suspended sentence.

15. That recognises both his plea and his efforts of rehabilitation. As I have said, the disqualification should stand and the 18 months' good behaviour order should stand.

16. The only question in my mind is whether it is appropriate to impose a condition as part of that good behaviour, not only to participate in programs, accept supervision as to drink-driving and/or whatever other matters that would be deemed appropriate by Corrective Services, I have also considered whether it might not be appropriate to require Mr Hammond to abstain from alcohol for the period of supervision at least.

17. I think it would do him good because I know it is easy enough to undertake to reduce one's drinking, but if it is all or nothing, then at least you know where you stand. You have no excuse for any consumption whatsoever then, and there is no kind of difficult judgment to make about whether one is enough or one is not enough. So I propose to impose that condition. And that would include, then, an obligation to accept breath analysis as and when attending upon Corrective Services for directions and/or supervision if so required.

18. That will be the result of the appeal. It is upheld to that extent.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Appellant: Legal Aid ACT

Solicitor for the Respondent: ACT Director of Public Prosecutions