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[2013] ACTSC 124
Supreme Court of the ACT
2013-06-13
Higgins CJ, Mr J
Original judgment source is linked above.
1. The appeal be upheld with the imposition a s 17 non-conviction order, subject to the requirement that the appellant enter a good behaviour order for a period of 12 months, as allowed for by s 17 of the Crimes (Sentencing) Act 2005 (ACT).
1. This is an appeal against the imposition of a penalty under the Road Transport (Alcohol and Drugs) Act 1977 (ACT). It was certainly the case that the penalty was not severe. But for the application for a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) and the fate of it, there would be no dispute about the level of penalty, maybe the disqualification, but that is another issue. In this case, the appellant had apparently pleaded guilty at the earliest opportunity. The appellant was a person of 44 years of age. She had been driving for 27 years. Her only conviction was one that was 26 years previously and unrelated to an offence of this kind. She was recorded as having a 0.083 reading which, as was rightly observed, is at the lower range of level 3 and she had held a licence for 27 years.
2. The circumstances of the appellant's offending were outlined and certainly do not reflect any discredit upon her as such. She had positive evidence of good character. She had indeed completed a drink driving program since being charged. I also note that when Ms Bird made the submission that a s 17 non-conviction order was appropriate, the prosecutor indicated that she had nothing to say. While not saying "I endorse it", it would be interpreted as saying she did not oppose it. It may not be a strong point, but when I look at the reasons for rejecting the submission, it does seem to me that it comes down to perhaps two things.
3. The first and most important principle, of course, is general deterrence. There was the question of the stop sign but, as her Honour said, she was not able to say that that was indicative of driving that was adversely affected by intoxicating liquor. It was perhaps a neutral indicator. As Mr Sabharwal said, if general deterrence is to be a bar to the imposition of a s 17 non-conviction order, then it is difficult to see any circumstance in which a s 17 order could be granted where the circumstances involve a lengthy period of trouble free driving and a person of good character. Not just good character by the absence of any adverse notations, but, rather, positively good character; circumstances where no other road user was apparently put in danger. One would think that would be a circumstance where you could feel impelled to apply s 17. The reliance simply on general deterrence does not seem to me to be an adequate reason for not doing so.
4. In those circumstances, I will uphold the appeal and impose a s 17 non-conviction order, with a requirement that the appellant enter a good behaviour order for a period of 12 months, as allowed for by s 17 of the Crimes (Sentencing) Act 2005 (ACT).
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Solicitor for the Respondent: ACT Director of Public Prosecutions
Hevesi-Nagy
Sarhan [2013] ACTSC 124