Crimes (Sentencing) Act 2005 (ACT) ss 7, 17, 33

Magistrates Court Act 1930 (ACT) Pt 3.10

Carpenter v Purcell [2008] ACTSC 34

House v The King [1936] HCA 40; (1936) 55 CLR 499

On Appeal from the Magistrates Court of the Australian Capital Territory

1. The appellant appeals against a sentence imposed by the Magistrates Court on 5 September 2013 in relation to an offence of driving a motor vehicle with a level 3 blood alcohol reading on 21 June 2013. The Magistrate convicted and fined the appellant the sum of $250, with court costs of $71. She ordered that the appellant pay levies. She disqualified the appellant from driving for a period of three months.

2. The maximum available penalty was six months' imprisonment or 10 penalty units. The maximum disqualification default period was 12 months, with a minimum period of three months.

3. On the anniversary of the tragic death of the appellant's son, she went out to dinner with friends. She was driving a friend home, when she was stopped for a random breath test at 11.00 pm. The friend, who was the passenger, was in the front seat. The appellant was tested and found to have a blood alcohol reading of 0.107. Police noted that she was moderately affected. As she held a full licence, she was required to refrain from driving if her blood alcohol reading exceeded 0.05.

4. The appellant tendered strong subjective material. At 52 years of age, she has no prior convictions. She has been licensed for 35 years and has an excellent driving history. There was evidence that the incident was associated with a tragedy in the appellant's life. The appellant works shift work, often at night, in a variety of locations, and it would be extremely difficult, if not impossible, for her to find appropriate transport to work should her licence be removed from her. Other material before the Magistrate demonstrated that the appellant is a woman of excellent character.

5. The appeal against sentence states the ground of appeal to be, "[h]er Honour erred in principle in declining to proceed under section 17 of the Crimes (Sentencing) Act 2005 (ACT)." In submissions, counsel for the appellant relied upon the terms of s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). He submitted that the Magistrate erred in concluding that the appellant's character and antecedents did not establish that it was inexpedient to inflict anything but a nominal punishment. It was submitted that her Honour attached insufficient weight to a number of factors, including factors bearing on prior good character, age, driving record, the absence of aggravating features such as erratic driving, and other matters. It was further submitted that the Magistrate erred in placing excessive weight on the sentencing purpose of general deterrence.

6. Section 17(2) of the Sentencing Act provides:

(2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):

(a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;

(b) a good behaviour order under section 13.

Importantly, s 17(3) provides:

(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(c) any extenuating circumstances in which the offence was committed.

Section 17(4) provides that the Court may also consider anything else that the Court considers relevant.

7. The provisions of s 17 must be understood in the context of ss 7 and 33 of the Sentencing Act. Section 7 prescribes the purposes for which a court may impose a sentence on an offender, and s 33 sets out matters that are to be taken into account insofar as they are relevant and known to the court. In relation to s 17, it is to be noted that the sentencing court is required to consider the factors in s 17(3). Having done so, the court retains a discretion as to whether or not to make a nonconviction order.

8. The appeal to this Court lies under Pt 3.10 of the Magistrates Court Act 1930 (ACT). The principles upon which this Court will review a discretionary judgment by a sentencing magistrate are well established. They were summarised by Penfold J in the matter of Carpenter v Purcell [2008] ACTSC 34 at [11]. In essence, the appeal court is not to substitute its own opinion as to what the sentence ought to have been. Second, the original sentence may be replaced if the sentencing discretion of the magistrate was infected by a specific error either of law or fact, or by taking into account irrelevant or extraneous considerations, or failing to consider relevant or material matters: House v The King [1936] HCA 40; (1936) 55 CLR 499. In cases where no specific error can be identified but the original sentence is manifestly excessive or manifestly inadequate, unreasonable, plainly unjust or plainly wrong, an error may be inferred.

9. In this case, the real argument is that the Magistrate attached inappropriate weight to various factors. An argument about specific error cannot reasonably be advanced as it is apparent that the Magistrate considered and generally referred to all relevant matters. The complaint is that the Magistrate placed undue emphasis on sentencing purposes such as general deterrence, and inadequate emphasis on purposes pertaining to the appellant's subjective circumstances and objective matters relating to the offence, such as the fact that it was not aggravated by bad driving and the like.

10. A reading of the Magistrate's reasons makes it quite clear that she considered all relevant matters. She considered the sentencing purposes referred to in s 7 of the Sentencing Act, she considered the matters that she was required to consider under s 17 of the Sentencing Act, and she also referred to the matters that she needed to consider (insofar as they were relevant) under s 33 of the Sentencing Act. She applied what appears to be an appropriate discount. She was aware of the maximum penalties and of the fact that the immediate suspension notice would have an impact on the three month disqualification period that was imposed. I can identify no error, either explicit or implicit, in the Magistrate's reasons.

11. The appeal is dismissed. The orders of the Magistrates Court are confirmed. In relation to the three month period of disqualification, I note that the appellant was suspended for a period of 18 days prior to the hearing in the Magistrates Court and two days prior to the filing of the appeal, a total of 20 days.

I certify that the preceding ten (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.