Hill v Wenham [2012] ACTSC 156

3. Two matters were raised on appeal. One was whether her Honour had erred in her approach to discounting the disqualification period in relation to the plea of guilty, and the other was whether her Honour had given insufficient weight to the impact of her sentence on Mr Hill's employment.

4. As to Mr Hill's employment, her Honour had before her a letter from Mr Hill's then employer indicating that Mr Hill was a valuable worker and that they would try to accommodate the inevitable loss of his licence. In discussion, her Honour made the point, in effect, that if having a licence was vital to Mr Hill's employment, then even his inevitable 12month disqualification would affect his employment.

5. Noting that giving insufficient weight to a particular piece of evidence is generally a difficult error to make out, unless it can be said to involve either an error of fact or a failure to properly take account of a relevant consideration, I am not satisfied that her Honour's approach to the evidence in relation to Mr Hill's employment was erroneous.

6. Her Honour's approach to working out the period of disqualification raised more issues. Her Honour said in sentencing Mr Hill:

I also, of course, take into account the plea of guilty. I have discounted the penalty that I would have imposed, had you not pleaded guilty, by 25%. I have also discounted a further period of time to reflect the fact that you are taking steps yourself to rehabilitate yourself in relation to the factors which led to this offending history.

7. Her Honour did not specify the starting penalty to which she had applied to 25% discount and the discount of "a further period of time", but in the absence of any specification I can only assume that she started with the default fiveyear disqualification.

8. In Newham v Cogle [2012] ACTSC 76 (24 May 2012), Refshauge J heard a similar appeal from a licence disqualification imposed in the Magistrates Court, and said at [45]:

It seems to me that her Honour also appeared to approach the automatic disqualification period incorrectly. It is neither a tariff (that is, a sentence standard: R v Sumner [2007] SASC 376 at [78]) nor a maximum (Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]). The default period can be reduced, to a statutory minimum, for "sufficient and appropriate reason": Guideline Judgment at 336; [127]. It is inevitable that there will be hardship, but it must be proportionate to the offence and the penalty for it and the need to protect the community. It can take into account various factors, including the nature of the offender's employment, the absence of viable alternative transport and sickness or infirmity of the offender or another: Guideline Judgment at 340; [146]. As an example, see R v Bennett at [26].

9. The respondent DPP did not challenge the correctness of this view. On this basis, it seems that her Honour erred, not specifically in her approach to the plea of guilty discount, but in her approach to determining an alternative to the statutory default disqualification period.

10. This finding of error opens the door to a resentencing of Mr Hill, but there is one further hurdle that he must overcome: in general terms, that the appellate court is satisfied that a different sentence should be imposed and that the different sentence would not involve mere tinkering with the original sentence. In Keen v Tither [2010] ACTSC 130 (15 October 2010), I considered the situations in which a sentence could or should be replaced after a finding of specific error, and after reviewing a number of Court of Appeal and High Court authorities, said at [44]:

1. In summary, the authorities I have referred to seem to support the following propositions:
   • (a) The exercise of the sentencing discretion will only be interfered with if error is demonstrated.
   • (b) There may be specific error or there may be error that cannot be identified but can be inferred from the fact that the sentence is manifestly excessive.
   • (c) If error is found, the appeal court may exercise the sentencing discretion afresh and re-sentence the appellant, unless the appeal court in the exercise of its discretion concludes that no different sentence should be passed. That conclusion is clearly open where specific error is found.
   • (d) Where an appeal court has found error inferred from a manifestly excessive sentence, the finding of manifest excess necessarily implies that a different sentence should be passed and the court will accordingly re-sentence the appellant.
   • (e) Three descriptions of cases in which a sentence may be replaced by an appeal court are found in the authorities, being:
     • (1) where the sentence is manifestly excessive;
     • (2) where the sentence is outside the appropriate range; and
     • (3) where some other sentence is appropriate or, in New South Wales, "warranted in law".
   • (f) That is, another sentence may be appropriate or warranted in law even if it is neither outside the appropriate range nor manifestly excessive.
2. It may be true that re-sentencing will generally only be appropriate if the error appears to have had an effect on the original sentence; but this does not reflect the causal relationship between correcting the error and re-sentencing, it reflects the requirement that another sentence is appropriate - a conclusion which may be less likely the less significant the error, but which is not directly constrained by the nature or effect of the error. (emphasis in original)

11. The evidence relied on by the appellant to argue that another sentence should be imposed consisted of a brief affidavit from Mr Hill, and oral evidence given when it emerged that the affidavit evidence did not seem to support the instructions he had presumably given his legal representatives.

12. In the Magistrates Court, her Honour the sentencing Magistrate relied on evidence she summarised as follows:

Your criminal history discloses one prior conviction in 2007 when, on my estimation, you would have been about 18 years of age, in relation to a mid-range offence of a similar type, PCA offence and another offence at the same time. I have your letter to the court and your expression of remorse in relation to this offence, and your plea of guilty to some extent supports that expression of remorse. These are matters, of course, which are difficult to defend in the circumstances and I offset the plea of guilty and the remorse against that fact.

I also have a letter from your employer, Mr Carney, indicating that you are a valued employee. You have only been with this organisation for seven months, but even in light of that time, they are prepared to accommodate you insomuch as they are able to in relation to what appears to be a promising career, reflecting your years of study in the building industry. I also have a reference from a friend of yours, who speaks highly of your character and I have no reason to doubt what was said in his reference.

You have commenced some counselling with Directions ACT. You have had one session so far and you are booked for another two sessions. You have recognised, it seems, that your use of alcohol, whilst not within the area of being alcoholic, is impacting upon yourself, potentially impacting upon the community and, of course now potentially impacting upon your career and livelihood. You have taken steps to address that issue and that is a factor that I take into account.

I also, of course, take into account the plea of guilty.

13. The additional evidence before me, admissible on a resentencing even if not relevant to the initial appeal in this case, is as follows:

(a) that, despite Mr Carney's indication of support for Mr Hill, Mr Hill was in fact let go shortly after the appeal was instituted because his employer was looking to shed staff and it was clear that, even had this appeal been successful, Mr Hill was still facing a further nine months disqualification;

(b) that Mr Hill has continued to look for work in the industry in which he is qualified, specifically the building and project management industry, and that he is still looking for work that will advance his career aspirations rather than allow his career to stagnate;

(c) that Mr Hill has had discussions with firms in that industry, one of which has said that they would be willing to give him some time to prove himself in work not requiring a drivers licence while he served out his further disqualification period, but he has no firm offers of employment;

(d) that Mr Hill has attended the Know Your Risk course at CIT, involving two sessions totalling 6 hours dealing with the effects of alcohol on driving;

(e) that Mr Hill has reduced his drinking and drinks only in moderation, three or four schooners once a week.

14. There is little in this extra evidence to require a different sentence to be imposed, especially since the sentencing Magistrate specifically mentioned Mr Hill's rehabilitation as a factor in her choice of a disqualification period. There is certainly nothing that would justify the reduction of the disqualification period down to the minimum 12month period. In particular, I am not impressed by Mr Hill's apparent expectation that both the court and prospective employers will adjust to his desire to advance his career rather than putting up with the career setback that seems to be an inevitable part of his punishment for highrange drinkdriving.

15. The only thing that would seem to justify a somewhat different disqualification period at this stage is the comparison between Mr Hill's employment future as indicated to her Honour by the letter from Mr Hill's then employer, and Mr Hill's current employment position, being that despite the April 2012 letter from Climatech (the employing business) giving a fairly positive view of Mr Hill's employment prospects, he was then let go at a time of staff cuts shortly after his sentencing, because an employee without a licence was, unsurprisingly, seen as less useful than one with a licence.

16. I assume, in the absence of argument to the contrary, that the legislature in setting a default disqualification period of five years, with power in the sentencer to reduce that, recognised that the impact on a person's employment might be relevant in deciding on an alternative disqualification period, but I am not satisfied that the legislature intended that the disqualification period would be capped at the period for which a person could retain employment without having a licence.

17. On the basis that the licence disqualification has had a significant impact on Mr Hill's employment position (a matter which was not clear at the original sentencing), it seems to me that a somewhat shorter disqualification period would be appropriate, sufficiently shorter to involve more than mere tinkering, but not a period so significantly shorter that it will, apparently, be enough to get Mr Hill the sort of job he has been talking to prospective employers about.

18. Accordingly, I uphold Mr Hill's appeal against the disqualification period, and shall set a new disqualification period equivalent to two years, reduced from two years and eight months to take account of his plea of guilty. I note that under s 35 of the Road Transport (Alcohol and Drugs) Act, the period of disqualification now imposed is automatically reduced by the duration of Mr Hill's suspension (21 January 2012 - 11 April 2012). To take account of the further 20 days after sentence was imposed that Mr Hill says he did not drive, I set the disqualification period from today at 23 months and 10 days. With the suspension period deducted by operation of law, that leaves the outstanding disqualification period at about 20 months and 20 days, meaning that the disqualification will expire in the last week of June 2014. Mr Hill should, however, check with the Court officers exactly how they calculate the expiry date, rather than relying on my rough calculation.

19. There are two further things that I want to say about this appeal.

20. First, Mr Hill is to understand that he is stuck with a significant licence disqualification and he will now have to adapt to that for another nearly 21 months. In my view, that means looking for a job that he can do without a licence, not trying to persuade people to give him jobs that really require him to be able to drive. It seems to me that a serious and stable employment history in which he has demonstrated flexibility, made the most of his skills, and perhaps acquired new ones, is more likely to impress a prospective employer when that 21 months is up than a continued focus on the kinds of jobs he will simply not be qualified to do for another 21 months.

21. Secondly, I am not convinced that this appeal should have been brought at all. If the evidence put before me was really the best that could be offered on behalf of Mr Hill, it is hard to see that he could seriously have been advised that he had good prospects of getting his disqualification down to the statutory minimum 12 month period. On the other hand, it is hard to imagine that the reduced disqualification period that seemed appropriate to me was really worth Mr Hill's while, given that it will still, as I have said, require him to make a substantial change to his employment plans for the next couple of years.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: ACT Director of Public Prosecutions