Hoang v Garrett [2011] ACTSC 169

2. The statement of facts put before the learned Magistrate reveals that at about 10.35 pm on 12 November 2010 Police were performing mobile patrols on Gungahlin Drive in the Australian Capital Territory. At that time they saw a motor vehicle travelling on Gungahlin Drive. Police stopped the vehicle and ascertained that the driver was the appellant now before the court. He was subjected to a screening test which proved positive and he was then taken into custody for the purposes of undergoing a breath analysis. The breath analysis revealed a reading of 0.088 grams of alcohol per 100 millilitres of blood, which is a level 3 reading. However, I note that it is towards the very bottom of the level 3 range. The appellant was subject to a blood alcohol limit of 0.05 grams of alcohol per 100 millilitres of blood.

3. The statement of facts indicated that Police were of the opinion that the appellant was heavily affected by alcohol. His demeanour was described as being cooperative. It is difficult to determine what weight should have been given to the opinion expressed by arresting Police that the appellant was heavily affected by alcohol. There are no facts set out in the statement of facts which was put before the learned Magistrate which support the opinion expressed in that regard. The reading itself, as I have already indicated, was 0.088 grams of alcohol per 100 millilitres of blood, towards the bottom end of the level 3 range.

4. Counsel then appearing on behalf of the appellant made submissions in mitigation of penalty to the learned Magistrate. It appears that none of the matters that were put by counsel for the appellant to the learned Magistrate were disputed by the prosecution. Of particular significance was the fact that the appellant had been driving for just over 20 years and had no previous convictions recorded against him.

5. In addition, he was in employment and, in fact, held two different jobs. He had his own gardening business, at which he worked almost every day, and he also had a permanent job with a restaurant between 5.00 pm and 10.00 pm six or seven days a week, depending upon his other work as a gardener. He also had three children, aged 16 years, 14 years and 9 years, who at that time were not residing with him but were residing with their mother. He did, however, provide for some of their expenses.

6. It was submitted to the learned Magistrate that it was a matter which could have been dealt with under s 17 of the Crimes (Sentencing) Act 2005. Effectively, counsel then appearing on behalf of the appellant submitted that the matter could be dealt with without the recording of a conviction.

7. Although it has no effect upon the outcome of the proceedings before the learned Magistrate and is not relevant to the appeal now before myself, I note that counsel who was then appearing for the appellant, after having made the submission that the matter could be dealt with by way of a non-conviction order, submitted to the learned Magistrate that if the learned Magistrate was not in agreement with counsel in respect of that submission, that counsel would seek an adjournment of the matter in order to lodge an application for a restricted licence for work purposes.

8. His Honour's sentencing remarks were, as was noted by counsel in the appeal before me, quite scant. I will read them in their entirety:

"I know you said you requested his reading as 0.088. I don't accept that he has sufficient driving experience and time to have earned the benefit of section 17. In the circumstances I convict you and fine you $600 with criminal injuries compensation levy of - (sic) court costs of $61 and criminal injuries compensation levy of $50 and you are disqualified for a period of five months."

9. His Honour, in the course of those sentencing comments, did not, in my view, appropriately address the criteria under s 17 of the Crimes (Sentencing) Act 2005 (ACT), nor did he specify whether and in what way he took into account the appellant's plea of guilty, which, as is conceded by the Crown in relation to these proceedings, was an early plea of guilty.

10. Even if one assumes that his Honour has taken into account all of the circumstances that are referred to in s 17 of the Crimes (Sentencing) Act 2005 (ACT), and has applied his mind to those criteria in determining that it was inappropriate to make an order under that section, one is still left with the proposition that the fine imposed, being a fine of $600.00, suggests that his Honour either did not give a discount for the early plea of guilty, or, if he did, that his Honour's starting point in terms of sentencing was, in my view, manifestly too high.

11. As I have already noted, his Honour does not indicate in what way he has dealt with the plea of guilty entered by the appellant. If one assumes that an appropriate discount of 25 per cent was given based upon the fact that this was an early plea of guilty, then the fact that his Honour has imposed a fine of $600.00 means that his starting point was a fine of $800.00 against a maximum penalty of $1,100.00, and in circumstances where the appellant had been driving for more than 20 years with no previous convictions, and the reading was at the bottom of the level 3 range.

12. In my opinion, no matter which way one looks at it, either as a failure to give reasons on the part of the learned Magistrate or, alternatively, as an issue of whether the sentence was manifestly excessive, error has been demonstrated.

13. Even if error is demonstrated, it is not appropriate for an appellate court to resentence if the court is satisfied that no other sentence could properly have been imposed. That, of course, calls for the appellate court to make an estimation of the appropriate sentence with respect to the charge which was before the magistrate.

14. I am satisfied, in this particular case, that another sentence could have been properly imposed. In my opinion, giving proper weight to the early plea of guilty entered by the appellant, and to his previous history, it would have been appropriate for his Honour to have dealt with the matter by way of a non-conviction order.

15. The order that I make is that the appeal is allowed and the conviction and penalty imposed by the learned Magistrate is set aside. The finding of guilt is confirmed and in lieu of the penalty imposed by the learned Magistrate, there will be a nonconviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). And as such, the disqualification is also set aside.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the respondent: ACT Director of Public Prosecutions