Krewaz v Jordan [2012] ACTSC 84

CRIMINAL LAW - Jurisdiction, practice and procedure - s 19 Road Transport (Alcohol and Drugs) Act - Automatic licence disqualification - Scott v Wynants - Requirement for good reason to reduce default period - prospects of and steps toward rehabilitation a good reason.

APPEAL - Jurisdiction, practice and procedure - Sentence appeal - Re-sentencing -

s 216 Magistrates Court Act - Where offender completed community service obligation while sentence stayed on appeal - Consideration.

APPEAL - Jurisdiction, practice and procedure - Filing of submissions - Non-compliance with Court Procedures Rules - Respondent may file with caveat - Consequences for late filing - Law reform.

Crimes (Sentencing) Act 2005, ss 17, 33

Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, ss 208, 216

Road Transport (Alcohol and Drugs) Act, ss 4C, 19, 35

Road Transport (General) Act 1999 (ACT), ss 61B, 61C

Court Procedures Rules 2006 (ACT), r 5137(2)

Barac v Thexton [2008] ACTSC 137

Carlton v The Queen [2008] NSWCCA 244; (2008) 189 A Crim R 332

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

R v Campbell [2010] ACTCA 20

R v De Simoni [1981] HCA 31; (1981) 147 CLR 383

R v Goodger [2009] QCA 337

R v Skura [2004] VSCA 53

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

R v Yost [2010] SASCFC 4

Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303; 61 NSWLR 305

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

Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228

(1) She be required to sign an undertaking to comply with the offenders' good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) a probation condition that for 12 months she be under the supervision of a person delegated by the Director-General, and that she obey the reasonable directions of the person delegated to supervise her;

(b) that she continue to attend on a psychologist for counselling for

12 months or such earlier period as the person delegated to supervise her may determine is satisfactory because it is no longer necessary or appropriate or until the order is varied.

(2) That she be fined the sum of $1 000, to be paid within six months.

(3) That the period during which she is disqualified from holding or obtaining a licence be reduced to two years and four months.

1. It is apparent and unarguable that drink driving is a social evil because it is a common cause of serious road injury and even death. Thus, it has properly been made a criminal offence and the courts have an important part to play in protecting the community from such behaviour by imposing sentences designed to achieve that objective. Such sentences, however, must be subject to the principle of proportionality which, as McHugh J said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 385; [69], "is one of the fundamental principles of sentencing law". That is to say, the sentence must be of a severity appropriate to all the circumstances of the case.

2. On 15 June 2011, Doreen June Krewaz had several social drinks with friends. She then got into her car thinking that she was capable of driving. Police were conducting roadside breath testing in the Gungahlin area and stopped Ms Krewaz. She was subject to a screening test under the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act), and it was positive to alcohol in her breath, suggestive of exceeding the prescribed concentration of alcohol.

3. Ms Krewaz was taken into custody to Gungahlin Police Station where she was directed to provide a breath sample which, on analysis, showed a concentration of 0.120 grams of alcohol per 210 litres of breath. That is a prescribed concentration of alcohol under s 4C of the Alcohol and Drugs Act at Level 3.

4. She was charged with an offence under s 19 of the Alcohol and Drugs Act (CC2011/6205), which was subsequently replaced with another charge under that section (CC2011/6259) and for which she appeared first in the Magistrates Court on 30 June 2011. Ultimately, she appeared in that Court on 8 September 2011, when she was sentenced. The learned Magistrate sentenced her to imprisonment for two months and suspended it immediately with a Good Behaviour Order for 18 months, including a probation condition and a community service work condition requiring her to perform 150 hours of community service work.

5. Ms Krewaz has now appealed to this Court against the sentence. She has challenged the imposition of a sentence of imprisonment, though the appeal, of course, permits the Court to revisit the sentence as a whole if error of the relevant kind has been shown.

6. This Court has power, under pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court. Division 3.10.2 of that Act regulates appeals in criminal matters such as this appeal. Section 208 of that division sets out the decisions of the Magistrates Court from which an appeal may be taken to this Court.

7. I have described the principles to be applied in such appeals in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151. I will apply them in this case.

8. 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 with 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 in re-exercising the sentencing discretion, I consider that a different sentence is appropriate and that I am not merely tinkering.

9. 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 re-impose the same sentence. Even if I cannot identify 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.

10. 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. This often has to be addressed at the conclusion of the appeal.

11. Two very relevant matters are necessary to be set out in order to understand the appeal. First is the traffic record of Ms Krewaz, the second is her personal circumstances.

12. As to the first matter, Ms Krewaz had, at the date of sentencing, one prior offence on her criminal record. In January 2007, she had driven a motor vehicle with a Level 3 prescribed concentration of alcohol. On that occasion, the concentration was

0.08 grams of alcohol per 210 litres of breath, which is the very bottom of Level 3.

13. She had been found guilty of that offence (CC2007/1121), but released under s 17 of the Crimes (Sentencing) Act 2005 (ACT) with a 12 month Good Behaviour Order. This was, no doubt, partly because of the relatively low reading but also because it was her first offence of any kind and her driving record at that stage was of approximately 30 years duration.

14. On the occasion of her sentencing for the offence the subject of this appeal, however, she was also being dealt with for another drink driving offence (CC2011/5453) and an offence of driving whilst suspended (CC2011/6026). These offences came about in this way. On 25 May 2011, Ms Krewaz was driving also in Gungahlin. As she drove, however, she came upon police engaged in roadside breath testing and, about fifty metres before arriving at the place where this was being conducted, she attempted to make a U turn but was prevented from doing so by the oncoming traffic. She was stopped by police and subjected to a screening test under the Alcohol and Drugs Act. When it proved positive, she was taken into custody and transported to Gungahlin Police Station where she underwent breath analysis, also under the Act. That analysis showed she had 0.1 grams of alcohol per 210 litres of breath, also a Level 3 prescribed concentration of alcohol.

15. As a result, she was issued with an immediate suspension notice under s 61B of the Road Transport (General) Act 1999 (ACT), which had the effect of immediately suspending her licence and prohibiting her from driving a motor vehicle. Thus, as at 15 June 2011 when she committed the offence the subject of this appeal (CC2011/6259), she was driving contrary to the suspension of her right to drive under the notice, also an offence under s 61C of the Road Transport (General) Act for which she was prosecuted at the same time (CC2011/6026). In addition, of course, that constituted her second offence of drink driving in three weeks and her third offence of this kind.

16. As to the second matter in her background, Ms Krewaz had, in September 2010, retired from the workforce where she had been employed for 27 years in the Australian Public Service. While she has never used illicit substances she has, since about 2005, had a problem with alcohol as a result of experiencing clinical depression and anxiety.

17. In 2005 she was prescribed Lexapro (an anti-depressant) and is currently prescribed Efexor (used for treating major depressive disorders, anxiety and panic disorders) and Antabuse (for the treatment of alcohol abuse and alcohol dependence). In 2009 she began to see a psychologist for her alcohol consumption, which had become a problem for her. This was traumatic for her, for she was ashamed of her alcohol misuse which, despite her best efforts, she had been unable to control. The psychologist diagnosed her as suffering from severe depression and anxiety and, in the words of the psychologist who had prepared a report for the Court, "her difficulties with alcohol represented her mechanism for trying to obliterate the very debilitating emotions associated with this psychological illness."

18. Ms Krewaz had a family history of depression including the tragic consequences of her sister taking her own life. Her depression was described as endogenous. Ms Krewaz was described as:

[working] very hard as a patient, attending all sessions regularly, implementing strategies for self-management, taking Antabuse, avoiding all alcohol, attending Alcoholics Anonymous (AA) meetings as well as receiving treatment for her depression and anxiety. She responded very well to psychological intervention, remaining alcohol-free and improving her quality of life so that in May

19. It appears that the day before the second drink driving offence for which the learned Magistrate was dealing with her, she had made an appointment with her psychologist (and, possibly, her medical practitioner whom she saw, however, after the commission of the second offence) in great distress "indicating that she had started drinking again and needed help in managing her situation". Her psychologist described this call as "desperate". She told her psychologist that she had "no real idea as to why she should have started drinking again, as she had been alcohol free for about 18 months." Ms Krewaz then resumed treatment with her psychologist on a weekly basis and other strategies were implemented for more effective management of her "Deep emotional disturbance".

20. Ms Krewaz appeared in the Magistrates Court for all three offences, the two drink driving offences and the driving while suspended offence. A Pre-Sentence Report was ordered and, as noted above, the proceedings were adjourned for sentence to

21. The Pre-Sentence Report set out, in the usual helpful way, Ms Krewaz's background and circumstances. It is not clear, however, whether the author was completely aware that there were two drink driving offences before the court at the time. The assessment of the author was as follows:

Ms Krewaz is a 51 year old woman who was both polite and cooperative, but extremely emotional, when she attended this Service. Ms Krewaz appears to be both deeply ashamed and remorseful for the current offences and has acknowledged the seriousness of the matters before the Court.

Ms Krewaz reported that she suffers with anxiety and depression and this information has been verified by her treating psychologist, as well as other relevant information including her alcohol use, in the psychological treatment overview.

Ms Krewaz appears to be extremely motivated to address her alcohol issue and mental health conditions. It appears she has a loving and supportive family and if Ms Krewaz continues with intervention from professional bodies in the community, this Service considers she is at low risk of reoffending.

Of her own volition, Ms Krewaz has enrolled in the ADFACT Sober Driving Program and has a starting date of 2 September 2011 with a completion date of 28 October 2011.

22. Mr P Bevan, counsel for Ms Krewaz, in his submissions to the learned sentencing Magistrate, drew attention to the differences between the two drink driving offences: though the latter was aggravated by a higher reading, the former was aggravated by her attempt to avoid arriving at where the roadside random breath testing was being conducted.

23. The learned sentencing Magistrate noted that Ms Krewaz was an intelligent woman, having completed a successful career in the public service and having obtained not only a Bachelors degree but also a Masters degree, saying that he had "some difficulty in comprehending Ms Krewaz's actions." Mr Bevan's submission in reply was that this was explained by the fact that she "suffers from a mental condition and obviously she does not think rationally". The learned Sentencing Magistrate responded by pointing out that she had held a responsible position where she was apparently able to make "sound, rational judgements in her working life".

24. Mr Bevan, in his submission, noted that she had stopped treatment before the offences. He further pointed out that she had sought help prior to the commission of the second drink driving offence. He submitted that she had a problem, though it did not excuse her behaviour but explained it. He further noted that she was taking prescribed medication which was said to be effective, although it was limited because of the side effects.

25. He further noted her remorse, contrition and shame. He noted that she was the mother of three children and was distressed at the challenge that the consequences of her action, particularly loss of licence, would have for them.

26. He also submitted that his Honour should take into account the efforts she was making to rehabilitate herself, the resumption of treatment and her enrolment in the Sober Driving Program. His Honour rejected the submission that she was suffering a mental illness such that she was not to be in the class of "people who suffer subject [sic] psychotic conditions, psychiatric conditions, in an extreme way are not to be considered to be satisfactory carriages [sic] for general [deterrence]".

27. His Honour also opined that Ms Krewaz probably told the Court in 2007 that the offences would not be repeated "because she was receiving treatment for her condition. She fell off the wagon and she is back before the courts in a big way. How can I have any confidence that she will not further offend?"

28. It needs to be noted that his Honour was, of course, speculating and on what appears to be false premises, for Ms Krewaz did not commence treatment until 2009 some two years after the first offence. It might also be noted that it is often the first lapse after one has seemingly conquered a problem that shows that the problem has not, in fact, been conquered, and that not only fuller treatment but a keener appreciation of vulnerability is required.

29. The prosecutor, in very properly restrained and succinct submissions, noted the maximum penalties. She submitted that the offence was serious and that the offences were prevalent and create safety risks for the community. She did not contend that the mental illness was irrelevant, but that condign punishment was required. She submitted that "a sentence of imprisonment or a substitute for a term of imprisonment would be an appropriate sentence".

30. After reciting the facts, the learned sentencing Magistrate referred to the Pre-Sentence Report. Curiously, he chose to conclude that the explanation for driving on the occasion of the second drink driving offence should be read as the explanation for the driving on the occasion of the first.

31. He noted her shame and insight into the effect of such offences. His Honour then said:

The defendant's actions on 25 May might be able to be described as an aberration of good judgement and a deviation from sound reason, but the same can't be said for her actions on the [sic] 15 June. On that latter date she knew that her right to drive the vehicle in this Territory had been legislatively removed from her, because of her alleged offence three weeks previously.

32. I am not quite sure what his Honour meant by "legislatively removed", it was removed, of course, by the service on her of an immediate suspension notice - an administrative act by a police officer. His Honour then twice referred expressly to the aspect of the driving whilst suspended.

She was apprehended in Gungahlin, some distance from her home in Latham. She had obviously driven the vehicle and was driving it home. She made a decision to flagrantly disregard her legal status concerning her licence and drive her motor vehicle. ...

[T]he defendant has been required to make sound decisions during her successful academic and working life. This in my view can only add to the opprobrium that must be attached to her contumelious attitude to the law in her decision to drive her vehicle on the [sic] 15 June, let alone to do so with a blood alcohol level of 0.120. It's academic to say that she was not entitled to have any alcohol in her system as she was not entitled to drive.

34. It might be said that his Honour was considering that the offence of driving whilst suspended was the most serious offence, though it was punishable only by a fine of

20 penalty units, that is $2 200. The offence of driving as a repeat offender with a Level 3 prescribed concentration of alcohol was punishable by a fine of 10 penalty units, that is $1 100, or imprisonment for six months or both.

35. His Honour then imposed the following penalties:

(1) For the first drink driving offence (CC2011/5453), a fine of $800 with court costs of $65 and criminal injuries compensation levy of $50 and his Honour reduced the automatic licence disqualification from three years to eight months;

(2) For the driving while suspended offence (CC2011/6026), a fine of $700; and

(3) For the second drink driving offence (CC2011/6259), imprisonment for two months, reduced by 30 percent for the plea of guilty, and immediately suspended with a Good Behaviour Order for 18 months with a probation condition (the details of which I do not need to specify), and a community service work condition of 150 hours.

36. In 6 October 2011, Ms Krewaz appealed against the sentence for the second drink driving offence (CC2011/6259). Initially she challenged both the term of the imprisonment and the community service work condition for the Good Behaviour Order, but abandoned that latter aspect at the hearing of the appeal.

(ii) Failing to consider the appellant's mental condition; and

(iii) Failure to properly consider or apply criteria contained in s 33 of the Crimes (Sentencing) Act 2005.

38. I had careful and comprehensive written submissions from the appellant. I had no written submissions from the respondent. That was because the appellant's submissions were only filed and served the day before the appeal, instead of five days before the appeal as required by r 5137(2) of the Court Procedures Rules 2006 (ACT).

39. Given that the grounds of the appeal are relatively clear in their intention, it is not impossible for the respondent to file submissions addressing them with the caveat that they have been prepared without the benefit of the appellant's submissions.

40. It is a matter of not insignificant concern to the Court that submissions, both to this Court and to the Court of Appeal, are often filed late or not at all. This may call for measures to address this failing by practitioners as it is quite inappropriate and prevents the Court from being able properly to prepare for the appeal. It would be regrettable if the Court had to take severe measures such as preventing an appeal from being heard or conducted if requirements of the Rules are not met.

41. Mr Bevan submitted that the learned sentencing Magistrate had erred in not accepting that Ms Krewaz's mental condition for depression and anxiety meant that general deterrence did not play a significant role in sentencing her.

42. He submitted that the condition must be taken to have affected her ability to make a rational decision about driving. His Honour clearly found it difficult to comprehend her decision to drive on the second occasion, but instead of accepting the answer that the evidence provided, namely that her judgement and decision-making processes were impaired by her mental illness, he concluded that she had simply been "flagrant" and "contumelious".

43. Ms K Weston-Scheuber, who appeared for the respondent on the appeal, submitted that there was a distinction between the existence of a mental illness and its effect on the offence or sentence for the offence and that this had to be shown by evidence which had not been done in this case.

44. Mr Bevan submitted further that the level of the sentence showed error as it was excessive. It appeared that, contrary to the principles established by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, it appeared that his Honour may have included in the sentence a penalty for past behaviour.

45. He submitted that the level of the penalty was too high, having regard to the circumstances of the offending and in the context of the penalties for the earlier offences. Although there were no sentencing statistics available he said, in response to a question from me, that his experience showed that imprisonment, however to be served, was generally imposed for a fourth or subsequent offence of driving with a Level 3 prescribed concentration of alcohol. This information is of course problematic.

46. He also referred to the reduction in the period of automatic disqualification from holding or obtaining a licence, namely to 12 months. That, he submitted, was consistent with the approach adopted in respect of the balance of the penalty.

47. Ms Weston-Scheuber referred me to Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303; (2004) 61 NSWLR 305 (Guideline Judgment) In particular, Howie J with whom the other members of the court agreed, said at 339; [142]:

The offence is not concerned with punishing the drinking of alcohol but with the driving thereafter, therefore it is no significance that the alcohol was consumed at a wake or a celebration, or because the person was abusing alcohol either generally or on the particular occasion because of some emotional or psychiatric condition.

48. His Honour did note, however, that the circumstances of the drinking may well be relevant to an assessment of the likely recurrence of the offence.

49. Ms Weston-Scheuber noted the trend in the three drink driving offences of increased levels of blood alcohol concentration - 0.08, 0.10 and 0.12. She submitted that severe punishment was required, particularly given the circumstances. She referred to what I said in Cotter v Corvisy (2008) 1 ACTLR 299 at 312; [65], that "prior criminality can result in the loss of leniency because of evidence of a 'continued attitude of disobedience'". I added that "[g]iven that deterrence is the primary purpose of punishment for offences such as the one committed by the appellant, the criminal record of the offender is highly relevant". In that case, the offence was of driving whilst disqualified but the remark is equally applicable to offences of drink driving.

50. She submitted that Ms Krewaz's failure to address her relapse after the first drink driving offence in 2011 denied her leniency upon which she could otherwise have called.

51. Mr Bevan, in his written submissions, but not addressed to any significant degree in oral submissions, referred to the absence of any reference by the learned Sentencing Magistrate to the extreme remorse of Ms Krewaz and the treatment and rehabilitative efforts she was making.

52. Ms Weston-Scheuber submitted that the reference to these matters in the submissions during the sentencing hearing was, in the circumstances, sufficient to show that his Honour was not only aware of these but had taken them into account. I also note that his Honour did refer to the shame experienced by Ms Krewaz.

53. Finally, Mr Bevan submitted that his Honour had not applied the principles set out by the High Court in Pearce v The Queen (1998) 194 CLR 610, that where two offences contained common elements it is wrong to punish the offender twice for those common elements.

54. The Victorian Court of Appeal has recently and comprehensively considered the way in which mental illness or mental impairment is to be taken into account in sentencing. The decision, R v Verdins [2007] VSCA 102; (2007) 16 VR 269, has been approved or followed by intermediate Courts of Appeal in New South Wales (Carlton v The Queen [2008] NSWCCA 244; (2008) 189 A Crim R 332 at 351; [101]), Western Australia (Western Australia v SJH [2010] WASCA 40; (2009) 200 A Crim R 228 at 246; [81]-[82]), Queensland (R v Goodger [2009] QCA 377 at [19]-[20]) and South Australia (R v Yost [2010] SASCFC 4 at [21]).

55. The Court reviewed the authorities and reformulated the principles to be applied in these circumstances. It is not necessary to set out all the principles here in full. Two matters to be mentioned from the decision are, however, relevant.

56. The learned sentencing Magistrate dismissed Mr Bevan's submission by suggesting that the nature of the mental illness suffered by Ms Krewaz was not sufficiently serious or "extreme" to warrant being taken into account, as I have noted above. That approach was expressly rejected in R v Verdins at 270-1; [3]-[8]. The Court noted, with apparent approval, a number of statement by courts to that effect, such as what the Court itself had said in R v Skura [2004] VSCA 53 at [8], namely, that

[a] disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence but the onus was on the applicant to demonstrate that it did so in this case, by establishing that its effect reduced the seriousness of the offences and the moral culpability of the applicant.

57. The Court summarised the position as follows (at 272; [13]):

Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the inquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances - that is, at the time of the offending or the lead up to it - or is likely to affect him/her in the future.

58. Thus, his Honour was in error in rejecting the depression and anxiety experienced by Ms Krewaz as irrelevant because it was not the kind of mental condition that justified being taken into account in sentence.

59. That, however, does not end the matter. It is, as the Court held in R v Verdins, necessary to show how the condition affected the moral culpability of an offender. The Court noted that there were a variety of ways in which this could be done and that it was not appropriate for an appellate court to be prescriptive about the issue. It did, however, list ways in which the courts have correctly held that impaired mental functioning has reduced the moral culpability and thus rendered denunciation as less likely to be relevant in sentencing. The Court said (at 275; [26]):

Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of:

(a) Impairing the offender's ability to exercise appropriate judgement;

(b) Impairing the offender's ability to make calm and rational choices or to think clearly

(c) Making the offender disinhibited;

(d) Impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) Obscuring the intent to commit the offence; or

(f) Contributing (causally) to the commission of the offence.

As we have said, this is not to be taken as an exhaustive list. (citations omitted)

60. The difficulty confronting Ms Krewaz on appeal is that the material before the learned sentencing Magistrate did not appear to make the connection needed between a mental condition and the offending. Mr Bevan asserted, not unreasonably, that her thinking under the condition was disturbed, but the psychologist did not say so. There was no suggestion that Ms Krewaz's ability to make calm, rational choices and to think clearly was impaired, at least at first blush.

61. The nearest the evidence came was in the comment by the psychologist that the emotions that her depression caused of black moods and fears were "very debilitating and overwhelming". In a very limited way this was, perhaps, supplemented by the comment by the psychologist that Ms Krewaz "had no real idea why she should have started drinking again", suggestive of some disordered or impaired thinking.

62. In my view, the evidence is not sufficient to justify a substantial impact on the sentence because of reduced moral culpability or that the effect on her mental capacity was sufficiently demonstrated to have much mitigating influence on general deterrence in the sentence.

63. On the other hand, it does seem to me to provide an explanation for her inexplicable behaviour in driving, such that his Honour's categorisation of it as "flagrant" or "contumelious" would, if the evidence was accepted, be quite inappropriate.

64. Given his Honour's erroneous rejection of the evidence of her mental condition out of hand instead of interrogating it to determine whether it could affect the sentence, it seems to me that this is a matter that needs to be considered in the appeal.

65. I have carefully read both the Pre-Sentence Report and the psychologist's report. I take into account, also, the unchallenged evidence that Ms Krewaz had contacted her psychologist and, it was submitted, her general practitioner, before the second drink driving offence. That this was on the day before that offence reinforces the conclusion that there must have been some impaired thinking involved. To that extent I consider that this does justify the mental illness being taken into account in this way.

66. I have to remark, however, that it has not been an easy decision. The evidence is not as clear as it should be. It is important that evidence is available to support submissions on sentence. If an expert has not addressed the right question, it cannot be improper to ask of them to address it either in an amended or supplementary report. It is if the answer is suggested or dictated by someone other than the expert that impropriety arises.

67. The Court of Appeal has recently considered the approach to be taken to the challenge to a sentence on the ground of manifest excess or inadequacy in R v Campbell [2010] ACTCA 20 (approved in R v TW (2011) 6 ACTLR 18 at 27; [60]). I adopt what was there said.

68. There is no doubt that the offending of Ms Krewaz was serious. To commit two such offences within three weeks must unarguably make it so. That, of course, does not justify any sentence or disproportionate severity, but requires a severe sentence to mark the denunciation of the behaviour and to punish it appropriately.

69. Mr Bevan submitted that, prior to the deduction for the plea of guilty, the sentence was half the maximum penalty. That is not quite accurate; it was half the imprisonment part of the maximum penalty. The maximum penalty includes the maximum fine; to ignore that is to ignore the legislative imperative that it gives in establishing the maximum: see Markarian v The Queen.

70. Nevertheless, it is a high level of penalty and it is concerning that his Honour was concerned, in his expression of reasons, with the fact that the offence was committed whilst Ms Krewaz was suspended from driving. Mr Bevan submitted, partly as a result of some exchange between Ms Weston-Scheuber and me, that this breached the principle in Pearce v The Queen. Certainly, that case stands for the proposition (at 623; [40]) that "[t]o 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."

71. On further reflection, however, it seems to me that this is not the principle that is engaged. It is rather the principle established in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389, that in sentencing for an offence it is not permissible to take into account as an aggravating factor for an offence a matter that constitutes a separate offence which could be, or is, prosecuted. If that is done, then it seems to me the principle in Pearce v The Queen might come into play.

72. That Ms Krewaz was driving whilst suspended is a separate offence, indeed one for which she was punished, and relatively severely considering that it was her first such offence. She was fined nearly one third of the maximum. She has not challenged that sentence.

73. I am satisfied that, on the basis of his sentencing remarks, his Honour did aggravate the sentence because of this factor.

74. In view of my finding, too, about Ms Krewaz's mental condition and the fact that she had commenced to address her rehabilitation before the commission of the offence, it seems to me that the sentence was manifestly excessive.

75. In Barac v Thexton [2008] ACTSC 137 at [55], I said that

whilst one cannot increase above its proper level one part of a sentence as '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. (citations omitted)

76. His Honour reduced the period of driver licence disqualification quite substantially. No reason was given. It is clear from the Guideline Judgment and indeed from what Higgins CJ said in Scott v Wynants (2009) 4 ACTLR 13 at 18; [30], that the automatic disqualification will be appropriate unless there is good reason for its reduction. No such reason was given.

77. If the automatic disqualification was imposed then to ensure that the sentence, that is the whole penalty including the disqualification, was not disproportionate to the criminality, attention would need to be paid to the other parts of the penalty. In many ways it must be said that the most relevant penalty for failure to obey the traffic laws is removal of the privilege of being permitted to drive on the public roads. Courts who imposed financial penalties or penalties that deprive people of their liberty may not give appropriate attention to that consideration. Of course, that does not mean that disqualification can, in some cases, itself be a severe penalty. Of course that is so.

78. In my view, his Honour did not approach the sentencing process with due regard to the relevant legal principles and that the sentence was, as a result, manifestly excessive.

(c) Failure to have regard to s 33 matters

79. This ground was not argued in oral submissions. It is true that his Honour did not, in his sentencing remarks, refer to Ms Krewaz's remorse or to the efforts of rehabilitation. There were, however, references to shame and her situation in his remarks. There were clearly also references in the sentencing submissions and in the Pre-Sentence Report.

80. There are difficulties in this area. On the one hand it has been said that if a matter has not been mentioned it is likely not to have been taken into account. There is authority to the effect also that it cannot be expected that everything taken into account will always be mentioned expressly.

81. It also needs to be remembered that Magistrates Courts have busy workloads and the sentencing remarks must be considered in that context. Submissions that are made shortly before sentencing can often be assumed to have been taken into account when referred to unless specifically rejected.

82. I do not, however, need to resolve these issues in this case in the light of my findings on other issues.

83. As a result of my findings, the sentence imposed by the learned sentencing Magistrate must be set aside and Ms Krewaz be re-sentenced.

84. Ms Weston-Scheuber noted that if I were of the view that error had been shown but that the same sentence would be imposed on re-sentencing the appeal should be dismissed. This is a correct articulation of the law. It does not seem to me, however, that it has any application where the error is discerned because the sentence imposed was manifestly excessive.

85. The re-sentencing, however, in this case, is somewhat complex. It appears that Ms Krewaz has completed her community service work. It appears also from a submission made to me this morning that that has been done entirely, or at least very substantially, during the period after Ms Krewaz lodged her Notice of Appeal. When she commenced the appeal, s 216 of the Magistrates Court Act stayed the sentence, so that any work completed after 6 October 2011 would strictly not discharge her obligation to complete such work. I take this into account.

86. As to the licence disqualification, it is to be cumulative on that imposed for the first drink driving offence, though that, by virtue of s 35 of the Alcohol and Drugs Act, incorporates the period of suspension under the immediate suspension notice.

87. Having regard to Ms Krewaz's prospects of rehabilitation and the steps she has taken in this regard, I do not consider that the protection of the community requires the full period of automatic suspension to be served. That, it seems to me, an appropriate and proper reason to take into account in determining to reduce by a short period the amount of the automatic suspension.

88. Accordingly, I order that the sentence be set aside.

89. In re-sentencing Ms Krewaz, I indicate that had I been sentencing her afresh I would have imposed, as a condition of the Good Behaviour Order I propose to impose, the requirement that she perform 150 hours of community service work. She has already completed these. If I make that now an order she will have to complete a further 150 hours and that is inappropriate. The sentence, however, needs to be read in that context.

90. In lieu of the sentence imposed by the Magistrate, accordingly, I propose to order that Ms Krewaz be sentenced as follows:

(1) She be required to sign an undertaking to comply with the Offenders' Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) A probation condition that for 12 months she be under the supervision of a person delegated by the Director-General and that she obey the reasonable directions of the person delegated to supervise her;

(b) That she continue to attend on a psychologist for counselling for

12 months or such earlier period as the person delegated to supervise her may determine is satisfactory because it is no longer necessary or appropriate or until the order is varied.

(2) She be fined the sum of $1 000 to be paid within six months; and

(3) The period during which she is disqualified from holding or obtaining a licence be reduced to two years and four months.

I certify that the preceding ninety (90) 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