//
[2016] ACTSC 37
General information, not legal advice.
Supreme Court of the ACT
2016-03-23
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL - Jurisdiction, practice and procedure - appeal from Magistrates Court - appeal against conviction - appeal against sentence - licence disqualification - allowance for guilty plea - double punishment - totality - use offence as aggravating feature of another offence
CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - sentencing - re-sentence - driving with prescribed concentration of alcohol in breath - failing to stop at stop line at red light - reduction of default disqualification
Crimes (Sentencing Procedures) Act 1999 (NSW), ss 21A, 54A
Magistrates Court Act 1930 (ACT), s, 216, Pt 3.10, Div 3.10.2
Road Transport (Alcohol and Drugs) Act 1999 (ACT), ss 4E, 8, 12, 19, 26, 32, 35
Road Transport (General) Act 1999 (ACT), s 24, r 61B
Supreme Court Act 1933 (ACT), s 68D
Australian Road Rules, r 56(1)(a)
Road Transport (Offences) Regulation 2005 (ACT), It 31.1, Pt 1.2, Sch 1
Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305
Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58
Burow v Hoyer (2015) 292 FLR 325
Burow v The Queen [2015] ACTCA 61
Cameron v The Queen (2002) 209 CLR 339
Channon v The Queen (1978) 33 FLR 433
Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176
Hill v Wenham [2012] ACTSC 156
Hugg v Driessen [2012] ACTSC 46; (2012) 261 FLR 324
Kennedy v Egan [2011] ACTSC 163
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Parnell v Rigby [2008] NTSC 40; (2008) 24 NTLR 1
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Rogers v Green [2008] ACTSC 78
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Elphick [2010] NSWCCA 112
R v Hilton [2005] NSWCCA 317; (2005) 157 A Crim R 504
R v Sessions [1998] 2 VR 304
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
Senderowski v Mothersole [2013] ACTSC 217
Sheather v Bishop [2012] ACTSC 77
Shires v Edwards [2011] ACTSC 132
Walker v Treloar [2012] ACTSC 175
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wood v Major [1992] TASSC 28; (1992) 3 Tas R 249
1. On 9 May 2015, Melissa Irving, the appellant, decided to drive a friend to his home, although she had been drinking earlier that evening and then at a social club in Greenway, ACT.
2. She drove through a red traffic light at an intersection in Greenway and was, accordingly, stopped by police, who were on mobile patrol in Greenway and who had stopped at the intersection.
3. She was required under s 8 of the Road Transport (Alcohol and Drugs) Act 1999 (ACT) (the Alcohol and Drugs Act) to undergo a screening test, which she did. The test proved positive to alcohol in her breath.
4. As a result, she was taken into custody and, at the Tuggeranong Police Station, required under s 12 of the Alcohol and Drugs Act to provide a specimen of breath for analysis and she did so. The analysis showed a concentration of 0.180 grams of alcohol in 210 litres of breath, a level 4 prescribed concentration of alcohol.
5. She was charged with an offence of driving with the prescribed concentration of alcohol in her breath contrary to s 19 of the Alcohol and Drugs Act and was summonsed to appear on 10 July 2015 in the Magistrates Court for the offence. She was also summonsed to appear on the same day in the Magistrates Court for the offence of failing to stop at the stop line at a red light, an offence against r 56(1)(a) of the Australian Road Rules.
6. On 24 September 2015, she was convicted on her plea of guilty to both offences, and, on the failing to stop at a red light offence, fined $380 and, on the drink-driving offence, fined $900 and disqualified from holding or obtaining a driver licence for three years.
7. Ms Irving has now appealed against the orders of conviction and the penalties imposed. It is, thus, what might be called a sentence appeal.
8. Part 3.10 of the Magistrates Court Act 1930 (ACT) confers jurisdiction on this Court to hear appeals from the Magistrates Court, including against sentences imposed by that Court, and Div 3.10.2 regulates those appeals.
9. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 at 153-4; [8]-[12], the principles applicable to sentence appeals. They may be summarised as follows.
10. Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
11. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable or plainly unjust or plainly wrong. I note that I shall apply these principles in this case.
12. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
14. On Saturday, 9 May 2015, Ms Irving apparently had two glasses of wine in the late afternoon, either at a friend's place or at a bar in Kingston, ACT; two different versions were given in the material before the Magistrates Court. She then travelled to a social club in Greenway where she met a man she was seeing at the time. He had just been accepted as a recruit into the Australian Federal Police. He had his car at the club.
15. Over the night, Ms Irving consumed a bottle of red wine and a shot of spirits over about six hours. She was, as she acknowledged, well affected by alcohol.
16. When she and her male companion decided to go home, they called a taxi from the foyer of the club but found that there were numerous people in the foyer also waiting for a taxi and that they had been waiting for some time. When she and her friend had also been waiting for some time and it appeared that no taxis were going to arrive at the club, she and her companion decided they would drive home, a not great distance from the club.
17. As her companion did not want to risk the consequences for him and his new employment of being caught and charged with drink-driving, Ms Irving drove his car. She knew that she should not have been driving. She had, however, only to drive a relatively short distance.
18. As she approached the intersection of Pitman Street and Athlon Drive, Greenway, the traffic lights turned to red in her direction but she continued to drive through the intersection.
19. A police vehicle on mobile patrol was at the intersection and, seeing Ms Irving drive through the intersection against the red traffic light, followed her, activated its lights and siren and followed her car. Ms Irving was travelling generally in the centre lane of the three lane arterial road, but, on a number of occasions, deviated to the other lanes in Athlon Drive.
20. Ms Irving stopped south of Reed Street South and the officers in the police vehicle approached the car. Ms Irving produced her licence and was required to undergo a screening test. When it proved positive, she was taken into custody to the Tuggeranong Police Station where she was required to supply a sample of breath for analysis.
21. She did supply a sufficient sample of breath and the analysis showed she had 0.180 grams of alcohol in 210 litres of breath. She was served with an Immediate Suspension Notice under r 61B of the Road Transport (General) Act 1999 (ACT), which suspended her right to drive in the ACT from the time of service on her for ninety days or until the proceedings for the drink-driving offence with which she was to be charged were finalised, whichever was the earlier. The Magistrates Court also has power under the section to stay the suspension effected by the Notice.
22. Police then arranged for summonses to be issued on 1 July 2015 for the two offences of drink-driving and of failing to stop at a red light.
23. The offence of drink-driving, contrary to s 19 of the Alcohol and Drugs Act, for a level 4 concentration (s 4E of the Alcohol and Drugs Act) and for a first offender, is punishable under s 26 of the Alcohol and Drugs Act by a maximum penalty of 15 penalty units (that is, at the time, a fine of $2250) and nine months imprisonment. In addition, under s 32 of the Alcohol and Drugs Act, her right to hold or obtain a driver licence is automatically suspended for three years, which period of disqualification the court may reduce to a minimum of six months in appropriate circumstances.
24. The offence of failing to stop at a red light is an offence against r 56(1)(a) of the Australian Road Rules. By Item 31.1, Pt 1.2 of Sch 1 of the Road Transport (Offences) Regulation 2005 (ACT), the maximum penalty for the offence is 20 penalty units (that is, at the time, a fine of $3000). That item also provides that the penalty, when an infringement notice under s 24 of the Road Transport (General) Act is served was, at the time, $360.
25. It seems that Ms Irving first appeared in the Magistrates Court on 10 July 2015.
26. The proceedings appear to have been adjourned so that Ms Irving could undergo an Interlock Assessment under Pt 3A of the Road Transport (Driver Licensing) Regulation 2000 (ACT). The assessment is conducted by the Court Alcohol and Drugs Assessment Service (CADAS).
27. The proceedings then returned to court on 24 September 2015, by which time the assessment had been completed.
28. At the sentence hearing, the prosecution Statement of Facts was read and tendered.
29. The CADAS report of the Interlock Assessment was tendered, as were a certificate of completion of the "Know the Risk" program and two references.
30. The learned Magistrate heard sentencing submissions and then imposed the sentence noted above (at [6]).
31. From the evidence before the Magistrates Court, the submissions of counsel and her Honour's findings, I make the following findings about Ms Irving's personal circumstances.
32. Ms Irving was twenty-eight years old at the date of the offence. She grew up in the ACT with a supportive upbringing and continues to share a positive relationship with her parents and with family members. The paternal members of her family, however, were heavy consumers of alcohol.
33. She completed Year 12 of her high school education and was employed full-time as a project officer for a medical service. She lives in privately rented shared accommodation.
34. Ms Irving had held a driver licence for eleven years and has no convictions recorded for any offence.
35. Her physical and mental health are good, though she has experienced a low mood and some stress since the offences. She is addressing those through the support of her friends.
36. Ms Irving first consumed alcohol at age fourteen but began more regular use when she was seventeen years old. She drinks irregularly during the week, but would drink about a bottle of wine at the weekend. She was assessed by CADAS on what was described as the Severity of Dependence Scale and shown to exhibit no dependency concerns.
37. She has some experience with other drugs but no longer uses any drugs or tobacco other than occasional use of cannabis, the last use of which, however, was in September 2014. It is, of course, illegal to use the drug.
38. She completed the "Know the Risk" program, an alcohol awareness program specified as a pre-condition under s 73C of the Road Transport (Driving Licensing) Regulation for the return of her licence following suspension. In fact, she completed the program immediately after being served with the summons in these proceedings. She was said to have gained valuable information from the course about excessive drinking.
39. The Support Services Manager of her employer provided a reference describing her as "a valuable member of our team". She says that she is "a happy and outgoing person" and thus "creates a positive working environment for other members of the team". She puts "great effort into everything that she does", is "a great communicator", and has "developed strong working relationships both within and outside the organisation". She shows "strong leadership" and is "a very reliable worker" who "works well under pressure" including "with very tight deadlines".
40. She was deployed by her employer to Sierra Leone for two months from 13 July 2015 to 11 September 2015 to assist in the Ebola Response funded by the Australian Government. She assisted in a 100-bed Ebola treatment unit which treated those who had contracted Ebola. She has also worked in medical placements in the Solomon Islands and in remote Australia.
41. A family friend also provided a reference and described Ms Irving as having "held high moral ethics and displayed impeccable values" which, in her opinion, made her decision to drive "out of the ordinary". She said that Ms Irving had re-assessed her lifestyle and companions as a result.
42. Both references referred to Ms Irving's offence, of which they were aware, and her expressions of remorse and regret and shame for the offending; they both felt she would be unlikely to reoffend.
43. Ms Irving's counsel outlined Ms Irving's explanation of the offending conduct and summarised her personal circumstances. He submitted that the licence disqualification default period should be reduced.
44. He said, however, that he was unable to point to specific matters that justified a reduction. He did refer to the Immediate Suspension Notice with which she had complied, even after its expiry. To the date of sentencing, this had amounted to a total of four months and fifteen days. No-one seems to have told Ms Irving that the maximum period of immediate suspension was ninety days. Ms Irving simply complied with the requirement initially created by the Notice not to drive and continued to do so until she was sentenced.
45. The prosecution made no submissions. In particular, there was no challenge to the fact that Ms Irving had not driven since she had been served with the Immediate Suspension Notice.
46. The learned sentencing Magistrate stated that she took into account the purposes and factors of sentencing set out in the legislation, presumably the Crimes (Sentencing) Act 2005 (ACT). Her Honour also said that she took into account the facts as stated in the Statement of Facts.
47. Her Honour assessed the objective seriousness of the offence as in the mid range. I have to say that the basis and purpose of such an assessment is not entirely clear to me, though it is commonly made. There is, unlike s 54A of the Crimes (Sentencing Procedures) Act 1999 (NSW), no statutory requirement for such an assessment and no legal relationship between such an assessment and the setting of a sentence or non-parole period.
48. Indeed, such assessments have a worrying tendency to suggest, contrary to the strong statements of the High Court in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at 72; [34], that sentencing is a mathematical exercise.
49. The task for the sentencer, as the High Court said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 612; [76], is to "take into account of all the circumstances of the offence and the offender" (emphasis in the original) and that to "attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform".
50. To make such an assessment is not an error unless it can be seen to distort the instinctive synthesis which is the sentence. It seems to me, however, that it is better for the sentencer to identify aggravating and mitigating factors of the offending so that the contribution they make to the overall sentence is identified and to make the sentencing process as transparent as such an exercise can be.
You had a passenger in the vehicle at the time. It was the manner of driving that drew the police's attention to your offence and, in particular, you went through a red light. Hopefully it hasn't escaped your attention that we have only very recently had a very tragic event that has resulted from somebody going through a red light.
This is a prevalent offence; that is, drinking and driving is a prevalent offence and in relation to both offences I impose penalties upon you to deter you from ever engaging in this conduct again and also to deter others.
These are issues of protection of the community. If you go through a red light the consequences, I would have thought, are fairly obvious and as I say, we have already had a very tragic example of what can happen to people when they do travel through red lights. In circumstances where you are affected by alcohol, your ability to act in an emergency situation is compromised, indeed, it may well be that you were compromised and that is the reason why you went through the red light in the first place.
53. Her Honour accepted that Ms Irving had pleaded guilty and accepted that, both for the facilitation of the course of justice (Cameron v The Queen (2002) 209 CLR 339 at 343; [14]), and as evidence of remorse. Her Honour indicated that this entitled Ms Irving to a discount of 20 percent.
54. While this seems to me a rather low discount for an early plea of guilty combined with actual evidence of remorse by completion of the "Know the Risk" program prior to her even being sentenced, it is ultimately a matter of discretion and not challenged on appeal.
55. There is, of course, no statutory requirement to specify a discount for the plea of guilty in a case where imprisonment is not to be part of the sentence: cf s 35 of the Crimes (Sentencing) Act.
56. Her Honour expressed herself that she took into account Ms Irving's age, personal circumstances, lack of prior record and period of driving. Her Honour also stated that she took into account her "contribution to the international community". She described her as of "impeccable character".
57. Her Honour also added that she took into account the matters in the CADAS Report.
58. The learned sentencing Magistrate stated that the penalty should "publicly denounce" Ms Irving's conduct and "hold [her] accountable".
59. Her Honour then imposed the sentence referred to above (at [6]).
60. At the hearing of the appeal, counsel for Ms Irving sought to amend the grounds of the appeal. He was permitted to do so. The respondent, very properly in the circumstances, did not oppose the amendment.
61. The amended grounds of appeal were as follows:
(i) Her Honour erred in principle in punishing the appellant twice for the same offence i.e. by punishing the appellant for one offence and then taking it into account as a circumstance of aggravation on the other.
(ii) Her Honour failed to take into account a material consideration.
(iii) Her Honour erred in applying a discount for the appellant's plea of guilty.
63. The regime for disqualification of driver licences has been described by me in some detail in Burow v Hoyer (2015) 292 FLR 325 at 327-37; [6]-[66].
64. I do not need to repeat what I there said. I rely on it and take it into account.
65. In this case, the learned Sentencing Magistrate did not make an order to reduce the default period. Thus, there can be no appeal from that disqualification: Burow v The Queen [2015] ACTCA 61, passim.
66. Ms Irving's counsel was concerned that the whole of the period of four months and fifteen days had not been taken into account. That, it appears, was the material consideration that ground (ii) alleged that her Honour failed to take into account.
67. In the circumstances, Ms Irving's counsel was correct to abandon that as a ground of appeal. If the appeal were to be upheld, of course, then it would be very relevant as an issue in re-sentencing.
69. The only ground, then, is the claim that the learned Sentencing Magistrate imposed a punishment that breached the principle that an offender must not be punished twice for any offence.
70. This has been construed to mean that culpability cannot be punished twice where elements of one offence are also elements of another offence part of the same conduct. As McHugh J, Hayne and Callinan JJ put it in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623; [40]:
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
71. Their Honours did, however, warn at 623; [42]:
... the inquiry is not to be attended by 'excessive subtleties and refinements' - [i]t should be approached as a matter of common sense, not as a matter of semantics.
72. Thus, an element of two offences may be the same, such as where a burglary is committed for the purpose of inflicting grievous bodily harm and where the grievous bodily harm is actually then inflicted: R v Hilton [2005] NSWCCA 317; (2005) 157 A Crim R 504. It, however, goes beyond this. As Adams J, with whom Bell and Hall JJ agreed, said at 509; [15]:
... this is not merely a question of commonality of the legal elements of the offences. It is necessary, rather, to consider the commonality of facts and circumstances with particular reference to criminality
73. Where there are common elements or a commonality of facts, the issue is not necessarily resolved by making the sentences concurrent: R v Hilton at 509; [15]; Pearce v The Queen at 623-4; [44]-[49]; R v Sessions [1998] 2 VR 304 at 307-8. The individual sentences must reflect the criminality, less the element of double punishment where the criminality is shared between offences. Thus, a court should sentence for one offence, the most serious, and then turn to the other offence or offences, making the necessary allowance in the sentence to avoid double punishment: R v Elphick [2010] NSWCCA 112 at [29].
74. In some jurisdictions, this has resulted in the subsequent offence being dismissed, as in Wood v Major [1992] TASSC 28; (1992) 3 Tas R 249.
75. The issue of double punishment is also related to the issue decided in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, in which it was decided that, where a circumstance of aggravation is not pleaded in an indictment, the court must not sentence by reference to that circumstance. As Gibbs CJ, with whom Mason and Murphy JJ agreed, said at 389:
the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. ... The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.
76. In the light of Pearce v The Queen, these fundamental principles suggest that a court must be very careful where an offence has a circumstance that is relevant as to aggravation but is also charged as a separate offence.
77. The issue of double punishment is also related to the issue of totality. In Pearce v The Queen at 623-4; [45], it was said:
To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
78. The principle of totality was explained by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-3, as follows:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41...
79. These are the relevant principles that must be applied.
80. Ms Irving submitted that a fair reading of the reasons for decision of the learned sentencing Magistrate showed that her Honour used each offence as an aggravating feature of each other offence. Thus, it was submitted, her Honour punished Ms Irving twice.
81. The respondent submitted that her Honour was complying with the statutory remit under s 33(1)(a) of the Crimes (Sentencing) Act to consider the "nature and circumstances" of the offence, s 33(1)(c) of that Act to consider whether the offence formed part of a course of conduct, and s 33(1)(p) of that Act to consider whether the offender was affected by alcohol when the offence was committed.
82. The respondent's submissions may be accepted, though they do not go far enough. That is to say, the matters set out in s 33 of the Crimes (Sentencing) Act are factors to be considered. The section does not (as, for example, in s 21A of the Crimes (Sentencing Procedures) Act) categorise them as aggravating or mitigating factors. Indeed, as Brennan J pointed out in Channon v The Queen (1978) 33 FLR 433 at 436-7, in relation to what we now refer to as mental impairment (but applicable to many factors in s 33), some of these factors can point in opposite directions.
83. The question is not whether it was proper to take these matters into account; the question is whether they can be taken into account twice. This is where the comment of Thomas, cited in Mill v The Queen above (at [78]), is apposite; the court must look at "the totality of the criminal behaviour" and assess whether the total sentence is "the appropriate sentence for all the offences".
84. There is no indication that her Honour did that. There is no doubt, as her Honour said in the passages cited above (at [51]-[52]), that the driving through a red light was serious, in the light of possible consequences, and that, when doing so, the fact that Ms Irving was well affected by alcohol may have severely compromised her capacity to meet any risk to which such behaviour might give rise. This aggravated the seriousness of the offence.
85. The second quotation from her Honour's reasons, however, was referring to the drink-driving offence. Again, the manner of driving when under the influence of alcohol is a relevant factor, as noted in Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 at 338; [138]- [139], relying also in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at 286; [216]- [217]. The manner of driving may be, if it breaches road rules and compromises road safety, an aggravating factor, making the offence more serious. See Scott v Wynants (2009) 4 ACTLR 13 at 17; [20].
86. Nevertheless, while to aggravate the seriousness of the offence by the fact of travelling through a red light is appropriate, it does not justify double punishment.
87. The penalty for the offence of failing to stop at a red light appears to have been aggravated when compared with the penalty under an expiation notice.
88. While this Court does not sentence offenders for drink-driving, except in special circumstances (e.g. under s 68D of the Supreme Court Act 1933 (ACT), it does regularly hear appeals from the Magistrates Court and this brings the Court into touch with standards of sentencing for such offences. Neither party provided any particular assistance in the assessment of the penalty actually imposed for that offence, though, of course, the primary obligation was on Ms Irving, who bore the onus of proof.
89. Thus, I have had regard to decisions such as Kennedy v Egan [2011] ACTSC 163, Shires v Edwards [2011] ACTSC 132, Hill v Wenham [2012] ACTSC 156 and Hugg v Driessen [2012] ACTSC 46; (2012) 261 FLR 324 and Walker v Treloar [2012] ACTSC 175.
90. While it cannot be said that the penalty of $900 was high, it did not seem to me to show any elements of moderation for the double punishment that was inherent in the consideration of the aggravating feature of failing to stop at the red light also for that offence.
91. In any event, there is no indication that the learned Sentencing Magistrate "took a last look" at the totality of the sentences imposed to be certain that they properly reflected the criminality involved. See Rogers v Green [2008] ACTSC 78 at [36].
92. Accordingly, I am satisfied that Ms Irving has identified an error made by her Honour in this case.
93. Accordingly, it falls to me to re-sentence Ms Irving, unless I consider the sentences appropriate. I do not.
94. In order to re-sentence Ms Irving, it is necessary to have regard to the principles of sentencing set out in s 7 of the Crimes (Sentencing) Act. In a case such as this, general deterrence is an important factor for, as the learned Sentencing Magistrate identified, the offence of drink-driving is a prevalent one and is designed to ensure road safety. The issue of prevalence was not a ground of appeal. This is a common offence, but it is appropriate to note the caution about references to prevalence expressed by Martin (BR) CJ in Parnell v Rigby [2008] NTSC 40; (2008) 24 NTLR 1 at 9; [32].
95. In this case, the circumstances of the drink-driving offending make the seriousness of the offence somewhat aggravated by the reading and the manner of driving. The journey contemplated, however, was not a long one. Ms Irving's passenger and the police were put at risk, but there was no evidence of any other traffic or pedestrians put at risk. There were no other aggravating features.
96. Ms Irving had no prior criminal record and had been driving for eleven years, which was a reasonable period to enable an assessment that these were uncharacteristic offences.
97. I take into account the matters set out in s 33 of the Crimes (Sentencing) Act. So far as I know them, they are set out in these reasons.
98. I agree with the learned Sentencing Magistrate that a fine is appropriate, but I have regard to the need to respect the principle of totality and to ensure that she is not punished twice for the aggravating features of each offence which are also included as separate offences.
99. In my view, a fine of $750 for the offence of drink-driving is appropriate and a fine of $350 for the offence of failing to stop at the red light is appropriate.
100. That is a total fine of $1100 which, in my view, is adequate and appropriate for the total criminality.
101. Of course, to this must be added the court costs of $75, the criminal injuries compensation levy of $50 and the victim's service levy of $30.
102. If Ms Irving has not paid the fine, costs and levies, I grant her a month to pay. If she has paid the fines, she will be entitled to a small refund.
103. So far as the disqualification is concerned, I note that no matters were drawn to the attention of the learned Sentencing Magistrate to justify departure from the default disqualification. Had this been the only matter on the appeal, that would justify the dismissal of the appeal.
104. As, however, the sentencing discretion has been enlivened, I can rely on the other matters to which my attention was drawn.
105. The most significant is the period for which, despite the expiry of the Immediate Suspension Notice, Ms Irving did not drive. She also did not drive for a period after the Notice of Appeal had been lodged and before her licence was returned. The total of this period is agreed between the parties as 179 days. The whole of this period should be taken into account, in accordance with what was accepted by Penfold J in Senderowski v Mothersole [2013] ACTSC 217 at [23]. See also Sheather v Bishop [2012] ACTSC 77 at [48].
106. I identified in Burow v Hoyer at 336; [57], the way in which the decision as to whether to reduce the default disqualification and, if so, by how much.
(i) the conviction free period of driving of Ms Irving, which suggests that there is not a great need for the protection of the public from her driving;
(ii) this assessment is re-inforced by the fact that she attended immediately upon being summonsed at the required drink-driving course, "Know the Risk", which she completed satisfactorily and which, while ultimately mandatory, she did not need to complete at that time;
(iii) the period during which Ms Irving did not drive, that is the 179 days (89 in excess of the mandatory 90 days under the Immediate Suspension Notice);
(iv) the reading which was at a reasonably higher level than the bottom threshold for a Level 4 reading;
(v) the reason for driving, namely that she was not prepared to await a taxi, though, in fairness, it appears that this would, in the circumstances, have been a very long wait;
(vi) her obvious knowledge, when she drove, that she had the prescribed concentration of alcohol, making the offence rather blatant;
(vii) Ms Irving had what I called in Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176 at 18; [45]- [47] "positive good character";
(viii) her plea of guilty which is also evidence of remorse which is likely to reduce recidivism; and
(ix) there is no suggestion that she has an alcohol dependency.
108. In my view, a period of two years suspension but then reduced by the 179 days is appropriate to meet these factors. Part of that reduction is by statutory provision: s 35 of the Alcohol and Drugs Act.
109. To be clear, however, it seems that I should proceed as I did in Hugg v Driessen at 333; [69], though for different reasons. That is to say, I should make a clear declaration to the actual length of suspension, taking into account the effect of the statute and the court order. I will, accordingly, make a declaration as to the period of the suspension.
I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Irving
Head [2016] ACTSC 37
(2004) 61 NSWLR 305
(2014) 253 CLR 58
(2015) 292 FLR 325
(2002) 209 CLR 339
(1978) 33 FLR 433
(2010) 5 ACTLR 151
(2010) 240 FLR 176
(2012) 261 FLR 324
(1988) 166 CLR 59
(2008) 24 NTLR 1
(1998) 194 CLR 610
(1981) 147 CLR 383
(2002) 55 NSWLR 252
(2009) 4 ACTLR 13
(2001) 207 CLR 584
(1992) 3 Tas R 249