CRIMINAL LAW - jurisdiction, practice and procedure - whether indication of penalty requires explanation when more severe penalty imposed.

Crimes (Sentence Administration) Act 2005 (ACT)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4D, 4E, 19

Legislation Act 2001 (ACT), s 133

Magistrates Court Act 1930 (ACT), ss 214, 216, Pt 3.10, Div 3.10.2

Crimes (Sentencing) Act 2005 (ACT), ss 13, 17, 35, Pt 3.2

Road Transport (Driver Licensing) Regulation 2000 (ACT), s 48, Div 3.7

Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 8A, 9

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10

Spent Convictions Act 2000 (ACT)

Barac v Thexton [2008] ACTSC 137

Shero v Hinton [2010] ACTSC 73

R v Campbell [2010] ACTCA 20

R v Eisenach [2011] ACTCA 2

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

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252

Bidlake v Police [2010] SASC 34

Kroezen v Healey [2008] ACTSC 25

Wade v Wynants [2008] ACTSC 6

Hammond v Road Transport Authority [2006] ACTSC 125

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

Tindall & Gunton (1994) 74 A Crim R 275

R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18

McDonald v Nilsson [2009] TASSC 83; (2009) 54 MVR 32

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111

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 by the Magistrates Court be confirmed.

3. The sentence imposed by the Magistrates Court be set aside.

(ii) he be ordered to pay Court Costs of $63.00 and a Criminal Injuries Compensation and Victims Levy of $60.00;

(iii) he be required to pay the above sums to the Magistrates Court within three months;

(iv) he be required to sign an undertaking to comply with the Offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT), for a period of 12 months with a probation condition that he be on probation subject to the supervision of a person delegated by the Director-General to supervise him and to obey all reasonable directions of the person delegated to supervise him.

(v) the period during which he is disqualified from holding or obtaining a licence be reduced to eight months and three days from today.

1. While drink-driving is a matter of serious community concern, for it is likely to be productive of serious injury and harm, when impaired drivers are in control of motor vehicles with the potential for lethal consequences, the punishment for the offence prohibited by the law is nevertheless regulated by the ordinary rules of sentencing, including fairness, parsimony, proportionality and totality.

2. Steven Robert Kennedy was driving a motor vehicle along Kosciuszko Avenue, Palmerston in the Territory on 28 February 2009, when he was stopped by police and subjected to a screening test with an approved screening device.

3. The result of the screening test was positive and, in accordance with the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act), Mr Kennedy was taken into custody and later provided a sample of his breath for analysis by an approved Breath Analysing instrument at a police station. The analysis of his breath sample was that there was 0.231 grams of alcohol in 100 millilitres of his blood.

4. Mr Kennedy was described as unsteady on his feet, with bloodshot eyes and slurred speech. Police formed the opinion that he was well under the influence of alcohol.

5. Mr Kennedy was charged, as a first offender, with driving on a public street with Level 4 alcohol in his blood, an offence contrary to s 19(1) of the Alcohol and Drugs Act, rendering him liable to a maximum penalty of fifteen penalty units (that is a fine of an amount, at the time, of $1,500.00: s 133 of the Legislation Act 2001 (ACT)), or imprisonment for nine months or both and, in addition, disqualification from holding or obtaining a driver's licence for three years, though that period could be reduced to not less than six months.

6. Although Mr Kennedy had been convicted in 1999 of a similar offence, he was, under the Alcohol and Drugs Act still to be considered, for the purposes of that Act, a first offender for s 4D (as the Act was at the date of the offence) provides that he remains a first offender in relation to the offence if he has not been convicted or found guilty of a relevant offence (that is, the same or similar offence or certain other defined offences) within a period of five years before being convicted or found guilty of the offence.

7. Mr Kennedy was summonsed to appear in court and on 5 May 2009 entered a plea of guilty. The proceedings were adjourned to 11 September 2009 so that Mr Kennedy could complete the Sober Driving Program. He enrolled in it and by 11 September 2009 had completed seven of the nine weeks of that program.

8. On that day, the Learned Chief Magistrate, after hearing the plea in mitigation from Mr Kennedy's counsel, sentenced Mr Kennedy to four months' imprisonment, suspended immediately, and imposed a Good Behaviour Order for two years, with certain conditions, including supervision for 12 months, and disqualified him from holding a licence for nine months from the date of sentence.

9. Mr Kennedy has appealed against that sentence on the ground that the sentence is manifestly excessive.

10. At the hearing of the appeal, an issue arose about the effect of an indication of penalty made by the Learned Chief Magistrate on 5 May 2009, which was much less severe than the penalty ultimately imposed.

11. Without opposition from the respondent, I granted leave for Mr Kennedy to amend his Notice of Appeal and he did so to add as a ground that his Honour failed to accord procedural fairness by failing to give Mr Kennedy an opportunity to make submissions on the more severe penalty and in failing to give reasons for the order for imprisonment.

12. This court has power under Pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court, Div 3.10.2 regulates appeals in criminal matters such as this appeal.

13. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.

14. The 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, and that I am not merely tinkering.

15. 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, plainly unjust or plainly wrong.

16. 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.

17. As noted above (at [7]), Mr Kennedy was summonsed to appear in court on the charge under s 19(1) of the Alcohol and Drugs Act. He did so on 5 May 2009 and entered a plea of guilty, being the earliest opportunity he could do so. The case against him was, inevitably, overwhelming, so s 35(4) of the Crimes (Sentencing) Act 2005 (ACT), limited the discount that this early plea attracted. Nevertheless, there was a utilitarian benefit to the court in Mr Kennedy not seeking to use further court time even by seeking an adjournment; it was also relevant as evidence of remorse and his acceptance of responsibility.

18. The Learned Chief Magistrate was obviously concerned about the high reading, which his Honour described as "an extremely high one". He found the offence proved.

19. His Honour heard that Mr Kennedy was taking prescribed medication for depression and described that as "very dangerous", though acknowledging that "it [would not] add to the reading". There was no direct evidence about this.

20. After a brief plea in mitigation, the Learned Chief Magistrate said:

HIS HONOUR: Well what I'll do in this case is put the matter over to enable him to do that and restrict his driving to work without alcohol and take that into account when we come to fix - he's got to go for six months, he will be going for a lot more than that anyway and the period he spends on bail while he does the course, in my view, will count in relation to the final level of cancellation.

MR FRASER: Yes, your Honour.

HIS HONOUR: So probably what I'll do is put it over, say, for three or four months, make it a condition of bail that he only drive for work purposes, to and from and during work, and that he doesn't consume any alcohol. Because quite frankly I need to be sure that he doesn't have an alcohol problem.

21. His Honour then adjourned the proceedings until 11 September 2009 and granted Mr Kennedy bail, self in the sum of $1,000.00 with conditions that he not consume alcohol during the remand and that he only drive "for work purposes for half hour before and after and during work". He directed that upon entering his bail, Mr Kennedy report to the Court Alcohol and Drug Assessment Service (CADAS) to get details of the Sober Driving Program.

HIS HONOUR: ... All right, if you come back I'll impose the fine plus somewhere near the minimum cancellation. So you would have already done three or four months. So the carrot is there. All right, conditions apply as of now and we'll just adjourn the application until then.

THE DEFENDANT: Thank you, your Honour.

HIS HONOUR: Because you will need the restricted licence after you've finished the bail, so we'll adjourn that to 11 September '09 part heard. And we'll say at 11.30 on that date, Mr Fraser.

MR FRASER: As the court pleases.

HIS HONOUR: Okay, on entering that bail he's free to go.

23. Mr Kennedy appeared again on 11 September 2009. A report from CADAS was provided to the court.

24. The CADAS report noted Mr Kennedy had told them he had used alcohol daily for the past seven years, consuming about nine standard drinks after work and on weekends about 15 bottles of beer at a time. His honesty to the author of the report inevitably caused some concern about his alcohol consumption. He had, however, not drunk any alcohol since 4 May 2009, in compliance with his bail conditions.

25. The report also noted that he had attended five counselling sessions at the ACT Health Alcohol and Drug Program in 2007. He had grown up with drinking commonplace in his family and acknowledged alcohol had been problematic for him, particularly with respect to relationships. He admitted that, when affected, he acted stupidly.

26. Three character references were tendered. All referees knew of the offence to which he had pleaded guilty.

27. His employer's reference was very supportive; he was "well liked and popular", he had been promoted and his employer was impressed with his "maturity, his sense of responsibility and his commitment to his profession ... he is a talented, diligent and creative chef."

28. He noted the difficulties for employees in the hospitality industry: "... anti-social, the hours are long, unforgiving and are hard on family members. Having a few drinks is often our way of relaxing and unwinding." He noted that Mr Kennedy now "realises there are ways to do this responsibly without endangering himself or others". He also reported a new company policy of "a strict" one only "knock off drink". He confirmed Mr Kennedy's expression of disappointment in himself and that his actions were foolish. He added "[h]e has been diligent in ensuring that it will not happen again".

29. The second reference was from a friend; she was married to Mr Kennedy's cousin. She described the offence as out of character and said that, despite often socialising with him, she had never seen him drive while under the influence of alcohol. She described him as "an honest, caring person of high integrity." She had never known him to be untruthful, deceptive or cause harm to others. He had strong family values and had expressed remorse and shame about the charge.

30. The third reference was from Mr Kennedy's mother. She had expressed disappointment when she heard of the offence and he had expressed to her his regret and that he is "blessed" that this action did not result in a tragedy. She said that his normal routine after work was to drink with his workmates but to leave the car at work. She then would drive him back to collect his car the next day. She also referred to the depression he suffered. Mr Kennedy's lawyer confirmed his attendance at the seven sessions of the Sober Driving Program and his intention to complete the Program.

31. The Learned Chief Magistrate confirmed that he was concerned about the high reading and the possibility of an alcohol problem.

32. There was no significant further submissions on sentence and his Honour then said:

HIS HONOUR: What I'm going to do is I'm going to impose a suspended sentence because he's a previous - not a previous in the legislation but he has a reasonably high reading and the reading of 231 is a very, very high reading.

MR FRASER: Yes, your Honour.

HIS HONOUR: So what I'll do is he will be convicted, you've made some submissions on the last occasion. He will be convicted and I will sentence him to four months' imprisonment. Suspended forthwith, so he's released straight away on a good behaviour order of two years, self $2,000.00.

And the conditions of that bond, probation for 12 months, including any direction for treatment and counselling and programs concerning alcohol.

33. Thus, while the sentence was significantly different from that foreshadowed, which was a fine, there was a momentary opportunity for a response from Mr Kennedy's lawyer, though, perhaps, not a realistic opportunity, before sentence was imposed.

34. There was some lack of clarity about the period of disqualification which, from my perusal of the transcript did not seem to be initially referred to expressly, but implicitly. On inquiry by the prosecutor, the Learned Chief Magistrate indicated that it would be for nine months; he said "I wrote it but I didn't say it."

35. An allowance should be given for the pressure in a busy Magistrates Court, as I noted in Barac v Thexton [2008] ACTSC 137 (at [41]). See also Shero v Hinton [2010] ACTSC 73. Nevertheless, with a common offence such as, regrettably, this is, it is to be expected that the Learned Chief Magistrate would be well able to articulate all the necessary matters involved in the sentence.

36. His Honour then granted Mr Kennedy a "work licence" (that is a restricted licence issued under Div 3.7 of the Road Transport (Driver Licensing) Regulation 2000 (ACT)) with a condition that he abstain from alcohol during the period of the licence, presumably for the disqualification period.

37. His Honour, also, then imposed a fine of $500.00 with court costs of $63.00 and Criminal Injuries Compensation and Victim's Levy of $60.00 and allowed three months to pay.

38. Thus, the sentence was a sentence of imprisonment for four months, immediately and fully suspended with a Good Behaviour Order for two years, with security of $2,000.00 and a probation condition for 12 months and a condition not to consume alcohol for 12 months and to comply with reasonable directions as to treatment and counselling in respect of alcohol use, a fine of $500.00, with court costs of $63.00 and Criminal Injuries Compensation and Victim's Levy of $60.00 and with a licence disqualification reduced to nine months commencing on 11 September 2009.

39. As noted above (at [9]), Mr Kennedy's first ground of appeal was that the sentence was manifestly excessive.

40. The nature of an appeal on the ground that a sentence is manifestly excessive has been considered in a number of cases. See, for example, Hawkins v Hawkins (2009) 3 ACTLR 210; R v Campbell [2010] ACTCA 20; R v Eisenach [2011] ACTCA 2.

41. A specific challenge was made to the complete ban on the consumption of alcohol for a period of 12 months.

42. Both appellant and respondent referred to the New South Wales Guideline Judgment in respect of offences of driving with a high range prescribed concentration of alcohol. That decision is 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. I shall refer to it as "the Guideline Judgment".

43. While it is not directly applicable to this Territory and not binding on this court, Higgins CJ, did note in Scott v Wynants (2009) 4 ACTLR 13 (at 18; [35]), that nevertheless, "much of the reasoning [in the Guideline Judgment], is applicable to a proper approach to the common legislative scheme". It is also to be noted that the penalties under New South Wales legislation are somewhat different to those legislated for in the Territory.

44. In the Guideline Judgment, the reasons were delivered by Howie J, with whom all the other members of the court agreed.

45. While the terminology in NSW and ACT are different, the highest range of alcohol concentration is the same, 0.15g of alcohol in 100 ml of blood: s 4E of the Alcohol and Drugs Act; s 8A(e) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW).

46. The penalties are slightly different. In the Territory, a Level 4 concentration is punishable for a first offender by a maximum of a fine of $1,500.00 or imprisonment for nine months or both: (see [5] above). In NSW, the maximum penalty for a High Range Concentration committed by a first offender, is a $3,300.00 fine or 18 months imprisonment or both: s 9(4) of the Road Transport (Safety and Traffic Management) Act.

47. The guideline, set out at [146] of the Guideline Judgment, is as follows:

In my view the following guideline should be made:

(1) An ordinary case of the offence of high range PCA is one where:

• (i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
• (ii) the offender was detected by a random breath test;
• (iii) the offender has prior good character;
• (iv) the offender has nil, or a minor, traffic record;
• (v) the offender's licence was suspended on detection;
• (vi) the offender pleaded guilty;
• (vii) there is little or no risk of re-offending;
• (viii) the offender would be significantly inconvenienced by loss of licence.

(2) In an ordinary case of an offence of high range PCA:

• (i) an order under s 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
• (ii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver's education or awareness course;
• (iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification;
• (iv) a good reason under (iii) may include:
  • (a) the nature of the offender's employment;
  • (b) the absence of any viable alternative transport;
  • (c) sickness or infirmity of the offender or another person.

(3) In an ordinary case of a second or subsequent high range PCA offence:

• (i) an order under s 9 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
• (ii) an order under s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
• (iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.

(4) The moral culpability of a high range PCA offender is increased by:

• (i) the degree of intoxication above 0.15;
• (ii) erratic or aggressive driving;
• (iii) a collision between the vehicle and any other object;
• (iv) competitive driving or showing off;
• (v) the length of the journey at which others are exposed to risk;
• (vi) the number of persons actually put at risk by the driving.

(5) In a case where the moral culpability of a high range PCA offender is increased:

• (i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
• (ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.

(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:

• (i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
• (ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.

48. I note, for completeness, that s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is approximately equivalent to s 13 of the Crimes (Sentencing) Act 2005 (ACT), namely a good behaviour bond order, while s 10 of the NSW Act is approximately equivalent to s 17 of the ACT Act, namely a non-conviction order.

49. The guideline is, however, not directly applicable and as the NSW sentences are more severe, that expression of the legislature's determination of the seriousness of the offence has to be taken into account: see Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (at 372; [30] to [31]).

50. It also has to be said that even in NSW, guideline judgments are not to be read like legislation. As Spigelman CJ said in R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 (at 220-1):

Such guidelines are intended to be indicative only. They are not intended to be applied to every case as if they were rules binding on sentencing judges ...

[Guidelines] represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator.

51. Nevertheless, as his Honour pointed out in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (at 357; [31]), where the guideline is not to be applied, it would be expected that reasons for that decision would be given, to inform both the public and any appellate court required to review the decision.

52. Such judgments have also to be read in this jurisdiction as subject to the views of the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, especially as in NSW legislative intervention has overcome the criticism made of such judgments as far as NSW is concerned: R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (at 270; [116]).

53. Thus, in Wong v The Queen, criticism was directed to what was regarded as too prescriptive an approach to the guidelines and that too much attention was paid to the results rather than the reasons which support the results.

55. The respondent submitted that this case fell within the description of an "ordinary case" within the meaning of the Guideline Judgment. In general terms that is so. Mr Kennedy did have a prior conviction for a similar offence, though Level 3 blood alcohol concentration. In addition, while Mr Kennedy's licence was not suspended on detection, there being no power to do that in the Territory, his bail conditions did prevent him from driving.

56. The respondent submitted that there were three factors of increased moral culpability in the terms of the Guideline Judgment: the high reading, exceeding the threshold by a substantial degree, the length of the journey, namely from Civic to Palmerston, his home and where he was apprehended, and the number of persons put at risk.

57. It was suggested that as the earlier offence was in respect of a blood alcohol concentration of 0.14% it was so close to the Level 3 threshhold that it ought to be considered effectively a Level 4 offence and so, applying the guideline, full-time custody would be appropriate.

58. While the Guideline Judgment is helpful and, as Higgins CJ said in Scott v Wynants, provides helpful and applicable reasoning, it is not definitive nor binding.

59. Indeed, in Scott v Wynants, the imposition of a suspended sentence of two months and fourteen days was set aside on the appeal. Mr Scott was sentenced to a Good Behaviour Order for two years, with a probation condition and a community service condition of 100 hours, and a licence disqualification for two years.

60. It is true that there were differences with this case, but there were also some aggravating factors in that case, namely a high reading of 0.179% (though not as high as this case) and a serious collision. There were witnesses, so presumably there were people put at risk, and it appears that the appellant had a more recent prior offence as he was, in the terms of the legislation, a repeat offender. It is not clear from the report whether the earlier offence was also of a Level 4 blood alcohol concentration.

61. Mr K Archer, who appeared for Mr Kennedy, submitted that reported decisions in this Court "do not suggest that a second offence over a ten year period (even in the case of a high reading) would attract a custodial sentence even if that sentence is suspended."

62. A selection of decisions from the ACT and various other jurisdictions were tendered. Some were of very limited assistance. For example, in South Australia, the relevant penalty seems to be a fine of between $700.00 and $1,200.00 with no period of imprisonment available: Bidlake v Police [2010] SASC 34 (at [16]). Thus, these cases were of no assistance.

63. Nevertheless, the cases do show that imprisonment for four months, even though suspended, is above what appears to have been imposed for more serious examples of this offence.

64. When the fine and restrictive condition not to drink alcohol are also included, the sentence does seem to be more severe than any recorded relevant sentences and in comparison to more serious offending which sometimes attracted a lesser penalty.

65. It is not necessary to analyse the authorities in detail. I should, however, just mention the cases in this Court to which I was referred:

• Kroezen v Healey [2008] ACTSC 25: plea of guilty to driving an unregistered vehicle, driving as a special driver with a blood alcohol concentration of 0.156% and driving whilst disqualified. Six prior convictions for drink driving offences. Sentence reduced on appeal to a total of nine months' imprisonment of which one month and 22 days to be served by full-time custody and then the next six months to be served by periodic detention and the balance suspended with a good behaviour order for 18 months with a condition not to consume alcohol for 18 months.
• Wade v Wynants [2008] ACTSC 6: plea of guilty to possessing methylamphetamine and driving with a Level 3 blood alcohol concentration. Speeding at the time of arrest through East Row, Canberra City at 2.56 am. Registered in Sober Driving Program. Five similar prior offences, though most recent six years' earlier. Sentence on drink-driving charge of six months' imprisonment suspended fully with a Good Behaviour Order for two years with a probation condition and a community service condition of 200 hours. Appeal against sentence dismissed.
• Hammond v Road Transport Authority [2006] ACTSC 125: plea of guilty to driving with a Level 4 blood alcohol concentration. Reading 0.235%. Five previous offences over 30 years, but four over 22 years, one of which in the range of 0.240% - 0.250%. Good Behaviour Order (not clear from this report whether there was a suspended sentence) with a community service condition.
• Barac v Thexton: plea of guilty to driving with a blood alcohol concentration of 0.110% (Level 3). Almost five years earlier had been convicted of driving with a blood alcohol concentration of 0.075% (Level 2). Sentence of fine of $700.00 and disqualification for two years varied on appeal to a fine of $800.00 and licence disqualification for six months.

66. Mr Archer submitted that a conclusion that could be drawn was that in order to justify granting a restricted licence to Mr Kennedy, the Learned Chief Magistrate felt compelled to impose a more serious sentence for the offence itself. That, of course, would be inappropriate.

Nevertheless, whilst one cannot increase above its proper level one part of a sentence as a 'trade off' from reducing another part below its proper level, there is some opportunity to balance a sentence by ensuring that while each part is within a proper range the effects on one part can be ameliorated and the balance maintained by a proper adjustment of the other: Allen v Bates [(1979) 20 SASR 575] at 578; Brooks v Baldock (1974) 9 SASR 591 at 593; R v Hicks (1987) 45 SASR 270 at 273.

69. Indeed, the whole question of the restricted licence was quite separate, and to be dealt with quite separately, from the question of sentence for the offence.

70. In order to assess the seriousness of the offence and, therefore, the penalty, the following factors are relevant:

(i) the blood alcohol concentration was very high, though not the highest regrettably seen in the courts;

(ii) there was no manner of driving alleged to have drawn police attention to Mr Kennedy;

(iii) there was one prior offence of this kind, though it was committed ten years ago;

(iv) Mr Kennedy pleaded guilty on his first appearance in court;

(v) Mr Kennedy showed remorse and insight into his offending;

(vi) Mr Kennedy had abstained from alcohol for four months prior to sentencing;

(vii) Mr Kennedy usually made alternative travelling arrangements when he was drinking;

(viii) While the distance travelled was significant and from a place where there could be expected to be pedestrians and other drivers (Civic), there were no passengers in his car and no other persons, other than the police, alleged to have been in the vicinity when he was stopped;

(ix) Mr Kennedy is and has been employed and is said by his employer to be a responsible and diligent employee;

(x) Mr Kennedy has a positive good character as disclosed in the references; and

(xi) Mr Kennedy is now 31 years old and appears to have been driving for over fifteen years.

71. I note also that the previous conviction was, by the time Mr Kennedy was convicted, a spent conviction under the Spent Convictions Act 2000 (ACT). That, of course, does not mean that it is irrelevant - indeed, it is highly relevant - but it is an expression of the legislature's view about the period after which a person is entitled to the benefit of the intervening crime-free period.

72. Ms K Weston-Scheuber, counsel for the respondent, submitted that the period of abstinence from alcohol was apparently intended to be for the period of the restricted licence. It could have been made a condition under s 48(5)(d) of the Road Transport (Driver Licensing) Regulation, though it would appear, as she conceded, that this would only be for the period of the restricted licence and so she conceded that it should be reduced to nine months.

73. Mr Kennedy sought, in his Notice of Appeal, to adduce further evidence, namely a certificate of completion of the Sober Driving Program.

74. Such evidence can be admitted under s 214 of the Magistrates Court Act (ACT). In this case, it was included in the Appeal Book, which made it clear that it was being admitted by consent: s 214(3)(b).

75. This is relevant, for the last two sessions were completed after Mr Kennedy had been sentenced. It shows an ongoing commitment to the rehabilitation that he had earlier indicated and was an example of his responsible attitude to which his employer had attested.

76. In view of my conclusion on the ground of manifest excess, it is not strictly necessary for me to consider further these issues. In deference to the submissions of counsel, I should, however, make a few remarks.

77. Although what his Honour did on 5 May 2009 was probably not in strict terms a Griffiths remand (see Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 (at 307, 311-12, 325, 330, 336)) the remarks of Hunt CJ at CL in Tindall & Gunton (1994) 74 A Crim R 275 are apposite. At 276-7, his Honour said:

Sight is often lost of what is to happen at the end of a Griffiths remand. Despite what was decided by the High Court in the case from which it takes its name, such a remand often tends to be regarded as the punishment itself, and it is easy (but incorrect) to form the opinion that, as such a punishment, it is inadequate. There are occasions - whether or not they are frequent it is unnecessary here to determine - where it is appropriate to delay imposing a sentence in order to compel, by the terms of the remand, some course of conduct by the offender conducive to his rehabilitation and reform. Such a remand should only be granted where there is a real expectation, founded upon solid grounds rather than upon mere sentimentality, that such consequences are likely to be achieved: cf Griffiths (at 306). More importantly, such a remand should only be granted where, in the event that rehabilitation and reform are achieved, it would be appropriate to impose a non-custodial sentence (at 325-326). I have no doubt as to the validity of the Crown's argument in this appeal that an offender would have a justifiable sense of grievance if a custodial sentence were to be imposed after he had complied with all the terms of a Griffiths remand.

78. In this context, Mr Kennedy may well be said to have a justifiable sense of grievance: he undertook the course, including seven attendances, he paid the $450.00 course fee, he complied with the bail condition not to consume alcohol nor to drive except for work. He was told he would be fined; he was, instead, sentenced to a custodial term of imprisonment, albeit fully suspended. It is, nevertheless, a term of imprisonment, as the Crimes (Sentencing) Act 2005 (ACT) makes clear in Pt 3.2, and in accordance with authority in cases such as R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18 (at 21; [16]).

79. The need for reasons is more problematic. In this case, reasons were more important because of the apparent change of mind. It is also clear that in a Magistrates Court, little may need to be said following the clear statement of the factual basis for sentence, much of which will be clear from submissions, particularly if not challenged: McDonald v Nilsson [2009] TASSC 83; (2009) 54 MVR 32 (at 35; [17] to [20]).

80. In the circumstances, this is not a suitable case, nor is it necessary, to dilate on the adequacy of reasons.

81. Having regard to the matters referred to above, I conclude that the sentence as a whole was manifestly excessive. That requires me to set aside the sentence and re-exercise the sentencing discretion: AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 (at 160).

82. It seems to me that had Mr Kennedy not had a prior conviction, a substantial fine would clearly have been within the range of adequate sentencing. Given the prior conviction, notwithstanding that it was 10 years earlier, a further penalty was appropriate since he could not rely on the leniency that would otherwise be available. This seems to me to be consistent with the initial views of the Learned Chief Magistrate who referred to a fine. A short custodial sentence, whether suspended or not would have been within range, but in the circumstances, imprisonment for a period of two weeks less than half the maximum, plus a fine of one-third of the maximum and a very personally restrictive condition to a Good Behaviour Order is excessive.

83. While the reduction of the disqualification period was apparently generous, it had to be considered in the light of the four months that, while on bail, Mr Kennedy had been deprived of the privilege of driving, except in terms that were consistent with the restricted licence ultimately granted.

84. It seems to me that, in the circumstances, there is an alternative to imprisonment that will meet the need for deterrence and support Mr Kennedy's rehabilitation.

85. In my view, a substantial fine, greater than that imposed by the Learned Chief Magistrate, with a Good Behaviour Order would be adequate.

86. I do not consider, given the efforts made by Mr Kennedy that it is necessary to restrain him from drinking alcohol, save when he is driving and then only for the period of his restricted licence.

87. Mr Kennedy did not, perhaps may not be able, to appeal against the condition on the restrictive licence he was granted. In my view, a total prohibition on the consumption of alcohol for the period of the restricted licence was severe but not beyond range. The condition to extend that beyond the period of the restricted licence was unwarranted.

88. I will, accordingly, make orders to give effect to these conclusions. In doing so, I will take into account the period of disqualification to which he has already been subject.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: ACT Director of Public Prosecutions