CRIMINAL LAW - sentence imposed by Magistrate manifestly excessive - repeat offender - mitigating circumstances not made out by the appellant - appeal against conviction and sentence dismissed.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 22(a), 27, 34, 41(1)(b)

Crimes (Sentencing) Act 2005 (ACT), s 13

Magistrates Court Act 1930 (ACT), ss 207, 208(1)(b), (e), 216

Supreme Court Act 1933 (ACT)

Court Procedures Rules 2006 (ACT)

Foreword to the report of the Australian Law Reform Commission; Alcohol, Drugs and Driving (AGPS: Canberra, 1976) Report No 4

Peverill v Crampton [2010] ACTSC 79

Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149

Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1

Charnock v Coady & Ors [2010] ACTSC 26

Hausmann v Shute [2007] ACTCA 5; (2007) 227 FLR 368

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329

R v Lirestis [2004] NSWCCA 287; (2004) 146 A Crim R 547

Perkins v Pohla-Murray (1983) 51 ACTR 3

R v Thompson [2008] VSCA 144; (2008) 21 VR 135

Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465

Application by the Attorney-General under Section 37 of the Crime's (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

Davis v Conroy [2005] ACTSC 8

Morris v East (1988) 83 ACTR 1

Taylor v Samuels (1977) 16 SASR 266

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The conviction entered in the Magistrates Court on 20 October 2009 is confirmed.

3. The appeal against sentence is dismissed save for such orders as may be necessary to address the stay of sentence effected by s 216 of the Magistrates Court Act 1930 (ACT).

4. The parties be heard as to appropriate or other orders.

1. Driving whilst having more than the prescribed concentration of alcohol in the driver's blood is an offence as the legislature sees the need to prohibit such conduct because of its contribution to Australia's unacceptably high road toll.

2. In doing so, however, problems have arisen about how to detect what cannot be easily ascertained directly, namely the amount of alcohol in a driver's blood at the moment of driving. Legislative devices are required to meet this problem. As Justice Michael Kirby said in his Foreword to the report of the Australian Law Reform Commission, Alcohol, Drugs and Driving (AGPS: Canberra, 1976) Report No 4:

No area of the criminal law is so likely to enmesh such large numbers of otherwise law-abiding citizens. Few areas of the law lend themselves so readily to the use of scientific devices designed to promote justice, efficiency and an end to controversy. Yet few areas of the statute book involve so many complexities and technicalities as this. Hundreds of our citizens daily face the courts on charges arising out of the unhappy combination of driving and intoxication.

3. Almost universally now across Australia, such offences are proved by the analysis of the driver's breath, which requires a driver to provide a sample of breath for analysis by a machine unsurprisingly usually called a breathalyser.

4. On 20 October 2009, Mohammed Kamara, the appellant, was, after pleading not guilty at a hearing, convicted of, being a repeat offender, failing to provide a breath sample as directed by a police officer. This is an offence under s 22(a) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). On 23 October 2009, he was made subject to a Good Behaviour Order under s 13 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) for 12 months, being a Community Service Order (s 13(6) of the Sentencing Act), where he was ordered to perform 160 hours of community service work within 12 months and he was disqualified from driving for two years. He was ordered to pay court costs of $61.00 and the criminal injury compensation levy of $50.00 within 28 days.

5. Mr Kamara appealed against the conviction and sentence on 23 October 2009.

6. Such appeals are made to the Supreme Court under ss 207 and 208(1)(b) and (e) of the Magistrates Court Act 1930 (ACT).

7. The appeal is by way of rehearing. In Peverill v Crampton [2010] ACTSC 79, I said (at [24]) of such appeals:

1. Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:

1. The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.

2. The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.

3. The appellate court must conduct a real and independent review of the evidence at the trial and the Magistrate's reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.

4. The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.

5. The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.

6. In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.

7. The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.

See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1 and Charnock v Coady & Ors [2010] ACTSC 26.

8. I should perhaps add that when a sentence is also challenged the following additional matters should be noted:

8. The sentence must not be overturned simply because the appellate court would have imposed a different sentence at first instance. A legal, factual or discretionary error must be found in the decision of the lower court, such as where that lower court has taken into account irrelevant considerations, or failed to take account of relevant consideration, made an error of law, acted on a wrong principle or mistaken the facts.

9. The error may, however, not be a specific error that can be identified, but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error is inferred given that the sentence is excessive, unreasonable, unjust or wrong. It is necessary, however, that an inference can be drawn that a different sentence is appropriate and, if not, the appeal should be dismissed.

9. In general terms, the facts of this matter are not in dispute. The following matters were not in contest.

10. At approximately 1.00 am on 5 October 2008, police noticed that a motor vehicle being driven by Mr Kamara was swerving across lanes on Ginninderra Drive in Kaleen, ACT.

11. Constable Benjamin Stone directed Mr Kamara to stop the vehicle, which Mr Kamara did. Constable Stone subjected Mr Kamara to a screening test which was positive for alcohol in Mr Kamara's breath, that is, that it indicated that the concentration of alcohol in Mr Kamara's blood was equal to or more than the prescribed concentration. Constable Stone formed the opinion that Mr Kamara was moderately under the influence of alcohol. His eyes were sleepy and bloodshot, his speech was fast and confused and there was a moderate odour of intoxicating liquor. He was only able to understand instructions to a fair degree.

12. The observations of Constable Stone were reduced to writing in a form which is used as the statement of information by an approved operator. It includes the details of what happened at the roadside as well. It was completed by Constable Stone and tendered by consent. Unfortunately, it was, for some reason, not reproduced in the Appeal Book. Nevertheless, some questions and answers were repeated in evidence and the learned Magistrate, in her decision, quoted and relied upon the following excerpts:

The screening test was conducted and presumably, this is what Constable Stone would have said - well, this was his evidence, it was his evidence and it's certainly in Exhibit 2. 'The defendant underwent a screening test in accordance with my direction and then the result of the' - he said, "The result of the screening test indicates to me that the concentration of alcohol in your blood is equal to or more than the prescribed concentration, do you understand?" The defendant says, 'Yep. What do we do now?' This is the answer that's written down here. As I say, no objection was taken to any of this.

The next question on this, apparently Constable Stone said, according to this piece of paper, 'I then said, "How long since you had your last drink?" The defendant said, 'Three hours ago.' I said, "Were you - where were you drinking?" The defendant said' and it's got here, 'No reply.' Then the constable said, 'I am now taking you into custody and you will be conveyed to City Police Station for the purpose of having a breath analysis carried out, do you understand?' The defendant said, "Yep." And then he was conveyed to the City Police Station.

13. Constable Stone took Mr Kamara into custody and transported him to the City Police Station. Mr Kamara was then required to supply a sample of his breath for analysis. Mr Kamara did so.

14. Constable Stone said in evidence that the breathalyser machine indicated that an insufficient sample had been provided. Mr Kamara said in evidence that he could not see the LCD screen on the machine which gave that indication. Constable Stone then required Mr Kamara to provide a further sample. He said that Mr Kamara stopped blowing and the breathalyser again indicated that an insufficient sample of breath had been provided.

15. The machine produced a printout showing the results of these two tests as "insufficient sample". The printout was tendered in evidence.

16. Constable Stone then required Mr Kamara to provide a further sample of breath on two more occasions. On each occasion the breathalyser indicated that an insufficient sample had been provided.

17. The printouts produced for two of those additional tests were also tendered. Each of the three printouts tendered showed "Insufficient Sample".

18. Mr Kamara was then arrested and charged with failing to provide a sample of breath in accordance with the reasonable directions of a police officer, contrary to s 22 of the Alcohol and Drugs Act.

19. Constable Stone gave evidence of the matters referred to above, that is the initial sighting of Mr Kamara, the initial testing, taking him into custody and then the process of requiring him to give a sample of breath by blowing into the breathalyser machine.

20. Constable Stone gave the following evidence about his approach to the process:

Did you give any directions to the defendant to continue to blow while he was providing a sample? - Yes, each time I have a defendant attempt to blow into the instrument, I say to him, 'I'll tell you to keep blowing, keep blowing, until I tell you to stop.' They'll take a deep breath, I think one of the read outs on the pro form is actually, 'Take a deep breath, blow calmly and continually into the tube until I tell you to stop.' From there he's done there, I've said to him, 'Keep blowing, keep going, keep blowing' to which he's then stopped and it's provided an insufficient sample.

21. Constable Stone observed that Mr Kamara was belligerent and uncooperative.

22. In cross-examination of Constable Stone, Mr E Ezekiel-Hart, who appeared for Mr Kamara, suggested that the breathalyser machine which had been used to analyse the samples of breath provided by Mr Kamara had been faulty and asked whether he had formed the opinion that something was wrong with the machine. Constable Stone denied both matters. Constable Stone acknowledged that Mr Kamara appeared to take a deep breath before blowing into the tube attached to the breathalyser. It was not put to Constable Stone that he was wrong in his evidence that Mr Kamara stopped blowing into the breathalyser before he was told he could stop.

23. Sergeant Paul Beath was also called to give evidence. He was the supervisor of the City Police Station of ACT Policing. He said that he heard an argumentative voice coming from the breath analysis room and went to investigate. After a short conversation with Constable Stone, he informed Mr Kamara that failing to provide a sample of breath in accordance with the police directions was an offence. He asked Constable Stone to provide Mr Kamara with a further opportunity to provide a sample of breath and saw that occur. He heard Constable Stone say "Keep going, keep going, keep going". He saw Mr Kamara stop blowing before Constable Stone told him he could do so.

24. Perhaps a little strangely, for no such evidence had been given by Constable Stone, nor had he been asked such questions, Mr Ezekiel-Hart asked Sergeant Beath in cross-examination whether Constable Stone had indicated that he was "not sure ... what is happening to" the breathalyser, or that the Sergeant had suggested the machine was faulty. Sergeant Beath said he could not recall such conversations.

25. There were other questions asked of Sergeant Beath but I found it difficult to see the relevance of much of the cross-examination to any issue in the proceedings. In particular, he was not challenged on his statement that he saw Mr Kamara stop blowing before being directed he could do so.

26. Sergeant Beath denied that anything in the events of the evening led him to believe that there was anything wrong with the breathalyser machine and said he had had no problems with it, nor was aware of any errors in it.

27. He did say, very much relied on by Mr Ezekiel-Hart,

And nobody has indicated such error to you at any other time? - To be truthful, today, sir, I heard there was something, but not at that time.

You heard there was something? So, if you heard that there was something, and after several times, which sometimes will be quantified as five, it did not occur to you that that something you had may have something to do with that machine? - No, sir, I'll repeat what I said. Today I heard something, at that time, I had nothing to fault the machine at all.

28. In re-examination, Sergeant Beath said that he had become aware that there may have been a fault in the breathalyser machine at 9.30 am on the day on which he gave evidence, namely on 20 October 2009. This does not seem to me to be very relevant to the proceedings.

29. Mr Darren Ely, now an officer of ACT Corrective Services, but at the time of Mr Kamara's arrest a police officer, was next called to give evidence. He had been on duty with Constable Stone at the time. He corroborated the evidence of Constable Stone.

30. In cross-examination, he confirmed that Mr Kamara was directed to provide a sample of breath on more than a couple of occasions - four or five he thought. He remembered only one occasion after Sergeant Beath had entered the breath analysis room that Mr Kamara provided a sample.

31. He said that Mr Kamara was argumentative, though he could not recall exactly what was being said. Indeed, he said Mr Kamara was argumentative from the moment they took him into custody.

32. A technical officer from the Australian Federal Police, Mr Michael Templeman, also gave evidence. He had significant expertise in the maintenance and servicing of breathalyser machines of the type used in this case. He was responsible for overseeing the calibration of the machines.

33. Mr Templeman told the court that he had serviced the machine in March 2008. He had done so because it was "giving alcohol in the environment errors". He explained:

Can you just explain to your Honour what that error would mean? Yes, it's when the instrument detects alcohol in the room whilst it is conducting a test, which - I should say, before every test, the instrument does a sample of the air inside the breath analysis room to see if there's any interference in the air such as alcohol. It was coming up with an intermittent error saying there was alcohol in the room. I believe the electrochemical cell in the instrument was reading a little bit low, which was causing that error.

So when you say electrochemical cell in the device was reading low, does that mean it was giving lower blood results, blood analysis results than it should? - No, it was still reading accurately. The result that's displayed by the instrument is determined by the infrared sensor inside the instrument. The electrochemical cell is there purely just to verify that the instrument is working correctly.

So as part of the self testing that the machine does, it utilises this electrochemical device to ensure that it's working properly? - Yes.

All right. Now, having regard to those results that you've got there from 27 March 2008, you tested to see whether the device was giving a proper reading as opposed against known alcohol concentration solutions that you used to test the device? - Yes.

And in fact it was reading within the parameters as required by the Australian Federal Police? - Yes.

34. Mr Templeman's test report was tendered. Mr Templeman also tested the machine on 31 October 2008 and found that the breathalyser machine was reading correctly in terms of providing samples. That test report was also tendered. Mr Templeman's evidence was that while the guidelines of the manufacturer were that the breathalyser machine should be tested once a year, the Australian Federal Police in fact tested it every six months.

35. In cross-examination of Mr Templeman, the error he detected in March was explored to some extent. He agreed that when the machine was tested in March 2008, it was giving a consistent error, namely the alcohol environment error referred to above. This error, he said, was one of the reasons for the calibration then undertaken.

36. He accepted that it was possible that the error would re-occur, but said it would normally do that only outside the calibration period. He also noted that such an error would be noticeable. His evidence was:

If the machine is - instrument is bringing up an error, it should be fairly noticeable and - as in, it will be a repeatable error. So, if I did make five tests, there is a good chance that it would bring up an error five times.

37. He also stated that the amount of breath supplied was a different error, distinct from an error in detecting alcohol in the environment.

38. The cross-examination was, unfortunately, somewhat confusing. It seemed directed at eliciting evidence from Mr Templeman that the machine could not be permanently error-free forever. That, it seems to me, is probably an unarguable proposition, but it does not help determine the case before the learned Magistrate.

39. Mr Templeman said in his evidence, that the error, if there was one, related to detecting alcohol in the environment, not to recording incorrectly that an insufficient sample had been provided when, in fact, a sufficient sample had been provided. Mr Templeman's clear evidence was that the machine will give a reading if it receives over one litre of air of breath. This would, he said, be provided by a constant blow into the machine. He agreed that if a person leans backward, takes a deep breath and blows into the machine (and a machine is error free) that that should provide sufficient breath.

40. Mr Templeman denied that if a person did that five times and the machine did not register a result then he would conclude that the machine was faulty. His evidence was that there is rarely any problem with the air flow sensors of the breathalyser. He said that such an error would result in the machine being reported as faulty. He also said that the machines are very reliable and do not often fail.

41. He acknowledged, as seems merely logical, that when one error is identified and being fixed, another error may be identified. As he said, every case is individual.

42. He also said that if there is an error, or fault in the machine, it will report that on the machine, irrespective of what the error is.

43. In re-examination, Mr Templeman was taken through a number of steps to try and give a clearer impression of the situation. His evidence was that the breathalyser machine has a number of sensors, including one to measure airflow and the volume of air blown by the testee into the machine. If there is an error with such a sensor, the particular error will display on the machine, such as "Check the airway".

44. The error indicated in March 2008 was in respect of alcohol being detected in the environment and that the sensor involved in detecting that was a completely different sensor to the one that measures airflow into the machine.

45. He said that it was possible that when rectifying a fault in the machine, he had detected another error. He could not remember specific details, but it was possible.

46. He also clearly stated that if there had been a fault with the airflow sensors (which detect the volume of air introduced into the machine), a "Check Airway" error would have displayed on the machine. The error would also have been printed out on the printout produced by the machine. No such result was on any of the tendered printouts.

47. Mr Templeman was shown the printouts which had been tendered as evidence and said that the machine appeared to be working correctly and that there was nothing to indicate that the machine was malfunctioning.

48. Mr Ezekiel-Hart was permitted to raise some additional questions in further cross-examination. They did not, however, appear to clarify the matter. It did clarify what appears to have been put earlier by Mr Ezekiel-Hart, but not particularly clearly, that when the machine (and printout) showed "Insufficient Sample" that did not mean that the machine was faulty.

49. Mr Templeman accepted that potentially the airflow sensor could be so badly out of calibration that it could be difficult for the testee to blow into it and that would cause an error. This was, however, a theoretical possibility and he had no evidence of it.

50. Mr Templeman said that when four samples were given and the machine showed them to be insufficient, then potentially (and, I suppose, logically) there could either be a problem with the machine or with the testee's blowing into it. Thus, it could be because, as he said in further re-examination, that the person stopped blowing into it. He also said in re-examination that when he calibrated the machine in March and October 2008, there were no faults with the airflow sensors. Finally, he said that he had never experienced a drift of the airflow sensors that they became badly faulty but self rectified within a few weeks.

51. Mr Kamara then gave evidence. He told of what happened at the police station, but not about his initial contact with police. He said he was requested to provide a breach sample and said that he did so and stopped when told to stop. He did it twice and then a third time. Another police officer (presumably Sergeant Beath) then came into the room and he gave a fourth sample. He said he blew into the machine a total of six times. He then said he was exhausted and that there must be something wrong with the machine.

52. His description, by virtue of assenting to an unchallenged leading question, was that he would lean back and blow into the machine until told to stop. He later described it as "lean back, take a deep breath and blow".

53. He was not able to see the sensor or the reading on the screen of the machine.

54. He told the police that he was exhausted and they asked him to blow one more time and, when he refused, they said that they were going to charge him.

55. Mr Kamara also said that he carefully followed the instructions of the police.

56. In cross-examination, Mr Kamara denied drinking alcohol that evening. He agreed he became angry with the police officers because they had thrown his drink away. He denied that it was alcohol. This was consistent with police evidence. He disagreed, however, that he was belligerent or argumentative at the police station.

57. It was put to him that he had been drinking alcohol that evening, that he was slightly intoxicated and that he deliberately stopped blowing into the machine before a sufficient sample had been provided. He denied each proposition.

58. The learned Magistrate identified the issue as whether Mr Kamara provided a sufficient sample of breath or whether the machine was faulty.

59. Her Honour summarised the evidence of the various witnesses. It is not necessary to repeat that here.

60. Her Honour held that, to acquit Mr Kamara, she would have to find either that the breathalyser was not working properly or that Mr Kamara was treated improperly by police. I am not sure that I would have expressed it this way, which seems to suggest a reversal of the onus of proof, but this was not challenged by Mr Kamara as an error. See Hausmann v Shute [2007] ACTCA 5; (2007) 227 FLR 368 (at 376 [62]-[63]).

61. Her Honour held that she was satisfied beyond reasonable doubt that neither was correct.

62. Her Honour noted that Mr Kamara had been subjected to a screening test which proved positive and, despite his denials in the witness box, had, her Honour accepted, said to police that he had had his last drink three hours ago. Her Honour also noted that the police had not been challenged about this evidence at all. Her Honour accepted that Mr Kamara stopped blowing before he was told to, thus failing to provide a sample in accordance with the police directions.

63. After hearing submissions on penalty, her Honour adjourned to have Mr Kamara assessed as suitable for community service, considering his record. He had earlier been convicted in 2004 of refusing to provide a breath sample for testing and of driving under the influence of alcohol in New South Wales in 2006. Also in 2006, he had been dealt with for an assault in respect of which a non-conviction order had been made.

64. Sentence was passed on 23 October 2009 when a Good Behaviour Order for 12 months was made with a condition that he perform 160 hours of community service within 12 months and pay court costs of $61.00 and a Criminal Injuries Compensation Levy of $50.00 within 28 days.

65. The broad thrust of Mr Kamara's submissions, made through his counsel, Mr Ezekiel-Hart, was that the prosecution had not proved its case beyond reasonable doubt because of the gaps in the case.

(a) errors in breathalyser machine supported by the compliance of Mr Kamara with police directions in relation to the breath testing;

(c) the CCTV in the breath-testing room was not operational; and

67. The suggestion of errors in the machine is canvassed quite fully in the summary of the evidence above ([33]-[46]). Essentially, Mr Ezekiel-Hart relied on the comment of Mr Templeman that if a person took a deep breath and supplied breath to the machine, but it showed that an insufficient sample had been supplied, this could "potentially" mean that there was something wrong with the machine or that the testee was not blowing fully or completely.

68. Mr Ezekiel-Hart further supported this ground by submitting that Mr Kamara had said on oath that he had provided a sample of breath six times. He submitted that this was strengthened by a reference in the police Statement of Facts (which, however, was not before the court) which asserted that Mr Kamara was seen by police to "take a deep breath, lean in and blow into the mouth piece of the breath analysing instrument".

69. This led Mr Ezekiel-Hart to say that there was a problem because Mr Templeman had agreed that if a person "lean (sic) backward and take a deep breath and blow into the machine and if the machine is fine, that should give a good result."

70. Mr Ezekiel-Hart pointed to various differences in evidence between police witnesses and Mr Kamara. These included the number of times Mr Kamara provided a breath sample, the precise position of police during the breath testing.

71. A further issue involved the fact that it appears that Mr Ezekiel-Hart had subpoenaed the CCTV records for the recording in the breath testing room at the time Mr Kamara was undergoing the test. It appears nothing was produced because the CCTV system was not functional at the time. Mr Ezekiel-Hart relied on the non-production to cast doubt on whether the breathalyser machine was working in perfect condition.

72. Finally, Mr Ezekiel-Hart also submitted that the learned Magistrate took into account irrelevant considerations, namely the behaviour of Mr Kamara at the police station and whether he had had any alcohol earlier in the day. He also submitted that her Honour mistook what Mr Kamara said about having a drink earlier.

73. Ms K MacKenzie, who appeared for the respondent, objected to a number of the assertions made by Mr Ezekiel-Hart because, it was submitted, they amounted to fresh evidence which was not properly receivable in accordance with the Supreme Court Act 1933 (ACT) (though, in fact, regulated by the Magistrates Court Act 1930 (ACT)) and the Court Procedures Rules 2006 (ACT).

74. Certainly, reference to the police Statement of Facts, some witness statements which were part of the brief supplied to Mr Kamara but not tendered, and the request for the CCTV did appear to fall into this category. I do not consider them.

75. Ms MacKenzie submitted that Mr Ezekiel-Hart misrepresented the evidence of Mr Templeman because his speculation about possible causes of the reading of "Insufficient Sample" was just that, speculation, and had to be put in the context of the unchallenged police evidence of Constable Stone and Sergeant Beath that they saw Mr Kamara stop blowing before being told to do so.

76. Ms MacKenzie also pointed out that the evidence of error relied on by Mr Ezekiel-Hart was an error relating to the machine detecting alcohol in the environment and nothing to do with the amount of breath being received by the machine.

77. Ms MacKenzie submitted that the only hypothesis consistent with Mr Kamara's innocence was that the machine was malfunctioning and the overwhelming evidence, she submitted, was that it was working properly.

78. Ms MacKenzie also submitted that the submission that the learned Magistrate had taken into account irrelevant considerations was not correct. Ms MacKenzie submitted that Mr Kamara's demeanour was used to assess the credibility of Mr Kamara, a matter that, it was submitted, her Honour had to consider given the issues involved.

79. Ms MacKenzie also noted that, as Mr Kamara had made a positive case, he was liable to adverse findings as to the value of his evidence where the substance of it was not put to the prosecution witnesses in accordance with the rule of practice set out in Browne v Dunn (1893) 6 R 67. She referred to MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 and R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547.

80. In particular, she referred to the failure of Mr Ezekiel-Hart to challenge Constable Stone's observation of Mr Kamara (see above at [21]), or to the fact that the screening test was positive, or the conversation at the roadside.

81. Objection was taken to what was seen as a new point not taken before the learned Magistrate, namely that Mr Templeman may tell lies to keep his employment. This was, it was submitted, never put to Mr Templeman in cross-examination as fairness would require to be done.

82. Ms MacKenzie also submitted that I should take into account the observations of the police officers and the statements at the scene as confirmatory of the fact that Mr Kamara had failed to provide a sufficient sample of breath in accordance with the instructions of Constable Stone. In this, she relied on Perkins v Pohla-Murray (1983) 51 ACTR 3.

83. She also relied on the decision of the Court of Appeal in Hausmann v Shute where the court there held that a failure to provide a sample of breath in accordance with the reasonable directions of a police officer, as here charged, did not require wilfulness on the part of the accused but merely non-compliance. This had here occurred.

(a) The operation of the machine and Mr Kamara's evidence

84. There was, of course, no onus on Mr Kamara to prove that the breathalyser machine was operating incorrectly or that it had a malfunction. At all times, the respondent bore the onus of proving, if the question of its operation was raised by appropriate evidence, that it was operating satisfactorily. This is the effect of s 41(1)(b) of the Alcohol and Drugs Act.

85. The evidence on which Mr Kamara relied was his own evidence of his attempts to provide a sample and the answers in cross-examination of Mr Templeman.

86. I do not need to analyse all the evidence of Mr Templeman. He was clearly giving properly cautious evidence, acknowledging that malfunctions were possible but not accepting that such possibilities pertained in this case. He was clear that any problem with the machine in March 2008 was unrelated to the sensors which measure the inflow of air (breath). He was clear that in the six monthly (and, therefore, more conservative that the manufacturer's requirement of twelve monthly) inspection the machine was working correctly. It seems to me that the evidence I have recounted (at [34]-[44] above) is particularly cogent. It was possible that the machine was malfunctioning, but that was not a reasonable possibility.

87. On the basis of Mr Templeman's evidence, the learned Magistrate was correct in finding that the machine was in proper working order.

88. In any event, there was, also supporting evidence. The machine showed that insufficient sample had been given. Mr Kamara relied on the fact that he could not see the LCD screen which showed this. It was, however, never suggested to Constable Stone that the screen had shown any other reading, such as that there was a malfunction in the air inflow tubes or sensors. The printouts, too, showed only "Insufficient Sample" and Not "Clear Airway".

89. In addition, there was the unchallenged evidence of Constable Stone and Sergeant Beath that Mr Kamara stopped blowing before the Constable directed him he could do so. This was powerful evidence, if accepted, for a finding, in conjunction with the readings of the machine, that the offence, in the terms identified in Hausmann v Shute, had been made out. There was no reason why it should not be accepted.

90. Ms MacKenzie referred to the evidence of intoxication from the observations of the police and Mr Kamara's roadside statement that he had stopped drinking three hours before being stopped by police. She relied on the admissibility of such evidence as enunciated in Perkins v Pohla-Murray. I am not sure that this evidence is particularly relevant. The offence is not related to any intoxication of a person taken into custody in the way Mr Kamara was. The roadside screening device may not be very accurate and may produce a false positive. Nevertheless, that would justify the police in taking a person who had "blown a false positive" into custody and requiring them to provide a sample of breath in accordance with the appropriate directions.

91. If that person failed to do so, even if completely sober, they would have committed the offence.

92. Mr Kamara relied on his denial of drinking as evidence that the machine was not working properly, evidence that Perkins v Pohla-Murray would allow to be admitted.

93. It was proper for her Honour to assess the credibility of Mr Kamara's evidence with all other evidence, including, perhaps especially, the unchallenged evidence of the police observations of Mr Kamara's and of his roadside statement to determine his credibility and, therefore, whether she could find that there was a doubt about whether the machine was properly working.

94. That Mr Kamara said he had followed the directions of the police officer is not decisive. That the police officers saw him take a breath and blow into the machine is not decisive. Even if they were accepted, they did not show that Mr Kamara had produced a sufficient sample, nor that he had not stopped blowing before he was permitted to do so.

95. In any event, the learned Magistrate was not obliged to accept Mr Kamara's evidence. She had to assess it having regard to her assessment of his credibility.

96. Thus, it was entirely justified for her Honour to find that, notwithstanding Mr Kamara's statements in evidence, she was not prepared to accept them because she rejected him as a credible witness. This re-inforced the finding, based on Mr Templeman's evidence, that the machine could be regarded, beyond reasonable doubt, as being in a proper working order.

97. I reject the submission that when Mr Kamara was asked "How long since you had your last drink?" he may have understood this to mean a soft drink or water. The preceding comment had been:

[Constable Stone] said, 'The result of the screening test indicates to me that the concentration of alcohol in your blood is equal to or more than the prescribed concentration, do you understand?' The defendant says, 'Yep. What do we do now?'

98. In context, Mr Kamara can have had no doubt that "drink" meant a drink of alcohol.

99. Indeed, this is reinforced by the fact that at the time of his apprehension, Mr Kamara had a soft-drink (as acknowledged by police) in his hand which he was drinking. If he had truly thought that "drink" included soft-drink or water, his answer would not have been "three hours ago" but "a few moments ago".

100. The alleged inconsistencies in police evidence were not such as would properly raise a relevant doubt in her Honour's mind. It is true that Mr Ely thought that Mr Kamara may have provided five (inadequate) samples of breath while Constable Stone clearly stated that he provided four. That is not an inconsistency of any moment. The other alleged inconsistencies referred to by Mr Ezekiel-Hart were equally of no moment in this case.

101. The reliance by Ms MacKenzie on the rule in Browne v Dunn is somewhat problematic. It is clear that some parts of the case that Mr Kamara sought to make through his evidence was not put squarely to the prosecution witnesses in cross-examination. The approach to be taken to this is by no means clear-cut. As Redlich JA said in R v Thompson [2008] VSCA 144; (2008) 21 VR 135 (at 157 [112]):

Where in breach of the rule, a matter has not been 'put' to a witness by counsel and is subsequently deposed to in evidence by counsel's client, an inference may arise that the matter has been recently invented. It is a process of reasoning fraught with peril which should therefore be employed only with much caution and circumspection, there being many explanations of such omissions which do not reflect upon the credibility of the witnesses. Accordingly, in a criminal trial the application of the rule and the circumstances in which an inference should be drawn from non-compliance with the rule must be seriously qualified. Where a party seeks to invite the jury to draw such an inference, a careful direction should normally be given concerning the operation of the rule and the limited circumstances in which that inference may be drawn. Footnotes omitted.

102. It seems to me that Ms MacKenzie put her submission too high in suggesting that because Mr Kamara had chosen to give evidence, he was amenable to the full application of Browne v Dunn. I cannot read that into MWJ v The Queen and it does not seem to me to have been decided in R v Liristis.

103. I do not find that her Honour fell into error in having regard to the finding she made that Mr Kamara was drinking on the day in question. It was not a finding that was directly relevant to the offence, as her Honour might be seen, unfortunately, to have said. His credibility, however, was important to determine issues such as whether he stopped blowing before being directed that he may and whether the machine was working.

104. Finally, the absence of the CCTV cannot assist Mr Kamara. It is true that, had it been working it may (but also may not) have shown whether Mr Kamara stopped blowing before being directed he could do so. In the light of the unchallenged evidence of Constable Stone, that was not necessary for the CCTV to be produced for the relevant findings to have been made. Similarly, its absence did not undermine the findings.

105. Accordingly, there is no basis for challenging the finding of the learned Magistrate that the machine was in working order and that the offence was made out.

106. Insofar as her Honour may have appeared to reverse or confuse the onus of proof, on the material before the court, there could be no doubt that the finding of guilt was entirely justified and not based on any such error.

107. Mr Ezekiel-Hart submitted that the sentence was manifestly excessive. He submitted that there were extenuating circumstances. These seemed to be the willingness of Mr Kamara to blow four times into the breathalyser machine, his earning capacity and his financial responsibility.

108. It does not seem to me that Mr Kamara's willingness to blow four (or even six) times into the machine is a mitigating circumstance. Had that been because the machine was faulty or the operation inadequate, that would have evidenced his co-operation, but here he did not comply with the directions he was given and blow adequately. To blow inadequately, no matter how many times, is not co-operation.

109. The only evidence of Mr Kamara's financial circumstances was an assertion to the learned Magistrate that he had a mortgage and that he should have "a restricted period of use of his licence to enable him to go to work and then able to sustain his financial responsibility".

110. This is hardly the evidence or other material on which a significant plea in mitigation can or should be based. There is no information about the amount of the mortgage, the repayments, his earnings, his other debts or even his employment. A court could expect that such information would be provided in support of such a submission.

111. The issue of Mr Kamara's prior record was raised. Of course, the fact that he was a repeat offender meant that immediately the penalty to which he was liable was increased. As a repeat offender he was liable to a maximum penalty of imprisonment for 12 months, instead of six months: s 27 of the Alcohol and Drugs Act. He was also liable to a licence disqualification of five years, which could be reduced but not below 12 months: s 34 of the Alcohol and Drugs Act.

112. The learned Magistrate's sentence was of a Community Service Order of 160 hours and a two year suspension.

113. This was the third offence of a relevant type within just under five years. There had been a prior refusal and a conviction for driving under the influence of alcohol.

114. It is true, as Mr Ezekiel-Hart submitted, that Mr Kamara cannot be punished twice for the offences for which he has already been sentenced. This is clear and has been reinforced by the High Court in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 (at 477). Nevertheless, as their Honours there observed:

The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose a condign punishment to deter the offender and other offenders from committing further offences of a like kind.

115. In this case, having regard to the number, recency and type of prior offences, it was legitimate for her Honour to take a serious view of the offence and sentence accordingly.

116. The respondent submitted that I should follow what Higgins CJ said in Scott v Wynants [2009] 4 ACTLR 13 where his Honour referred to the New South Wales guideline judgment, Application by the Attorney-General under Section 37 of the Crime's (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. His Honour cited with approval (at [27]) what fell from Howie J that "Where a prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate".

117. In many ways, a failure to provide a sample of breath can be equated to a high range PCA or, in this jurisdiction, a level four offence. The penalty for a first offender of that offence is somewhat greater than for failing to provide a breath sample for, although it attracts a smaller maximum fine (15 penalty units as opposed to 30 penalty units), it attracts a maximum imprisonment of nine months rather than six months. As for a repeat offender, the failure to provide a breath sample attracts a larger fine but the same imprisonment as for a level four offence.

118. Thus, the two offences can be said to be somewhat comparable. Having regard to this, the penalty was well within range.

119. Mr Ezekiel-Hart referred to Davis v Conroy [2005] ACTSC 8 where the learned Sentencing Magistrate imposed a non-conviction order at first instance. That order was set aside on appeal and the proceedings remitted to the Magistrates Court for re-sentencing.

120. Although the offence was the same, though Mr Conroy was not a repeat offender, the circumstances were entirely different. Mr Conroy had not been convicted of an offence for 16 years, although prior to that he had had two drink-driving offences. He had also substantial subjective matters to his credit. That case is of no assistance to Mr Kamara.

121. Miles CJ said in Morris v East (1988) 83 ACTR 1 (at 9) noted that "[t]he evils of driving motor vehicle whilst under the influence of liquor are productive of great cost and suffering." His Honour referred to what had fallen from King J in Taylor v Samuels (1977) 16 SASR 266 (at 280) which are salutary comments which repay consideration. The offence of which Mr Kamara has been convicted is an important part of the regulatory framework necessary to provide support for the addressing of the evils of drink-driving. Offenders can expect severe punishment.

122. As to the licence disqualification, I note that Higgins CJ pointed out in Scott v Wynants (at [32]) that the "default period [here five years] is, in effect, the usual period unless there is good reason to vary it though not below the minimum of 12 months". Mr Ezekiel-Hart pointed to no particular reasons for variation and certainly none that had an evidentiary basis.

123. The appeal against sentence must also be dismissed.

124. Because, however, of the effect of s 216 of the Magistrates Court Act 1930 (ACT), I will re-sentence Mr Kamara to deal with that issue.

125. I shall here the parties as to any other orders, both to deal with the consequences of that section and any other issues.

I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Refshauge J.

Solicitor for the appellant: Niger Delta Lawyers & Maritime Services

Solicitor for the respondent: Director of Public Prosecutions (ACT)