Newham v Cogle [2012] ACTSC 76

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4C, 4E, 4F, 19, 33

Magistrates Court Act 1930 (ACT), ss 208, 216, 244, pt 3.10, div 3.10.2

Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1

Hamilton v Spalding [2010] ACTSC 160

Shires v Edwards [2011] ACTSC 132

Dixon v David [2012] ACTSC 42

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

Rich v Australian Securities and Investment Commission [2004] HCA 42; (2004) 220 CLR 129

Miles v Police [2009] SASC 181; (2009) 104 SASR 127

R v Bennett [2011] SASCFC 68

Barac v Thexton [2008] ACTSC 137

R v Copeland (No 2) (2010) 108 SASR 398

R v Sumner [2007] SASC 376

Police v Waller [2011] SASC 232

Hugg v Driessen [2012] ACTSC 46

Goundar v Goddard [2010] ACTSC 56; (2009) 240 FLR 176

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The order of the Magistrates Court that Jason Matthew Newham be disqualified from holding or obtaining a driver licence for two years be set aside and in lieu he be disqualified from holding or obtaining a driver licence for seven months.

3. The orders of the Magistrates Court otherwise be confirmed.

1. The period during which Jason Matthew Newham is disqualified from holding or obtaining a driver licence will end on 12 December 2012.

1. Foolishly, Jason Matthew Newham consumed some alcohol on 5 August 2011 and then got into his car and drove through Red Hill, ACT, at about 8.10 pm.

2. Unsurprisingly, and comfortingly for those of us who value road safety, he was intercepted by police and subject to analysis of his breath in accordance with the provisions of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act). In the result, he was, under that Act, found to have a blood alcohol concentration of 0.085 grams of alcohol per 210 litres of breath. This was a prescribed concentration under s 4C of the Alcohol and Drugs Act.

3. He was charged with an offence under s 19 of that Act and appeared in the Magistrates Court on 2 November 2011. The matter was adjourned but ultimately he entered a plea of guilty to the charge on 8 December 2011.

4. After he pleaded guilty and submissions were made on sentence, the learned Chief Magistrate sentenced him. Her Honour fined him $660, ordered him to pay court costs of $67 and a contribution to the Criminal Injuries Compensation Fund of $50 and reduced the period during which he was disqualified from holding or obtaining a driver licence to two years.

5. Mr Newham has appealed against that decision. His complaint on the appeal was only in respect of the period of the licence disqualification.

6. On 26 April 2012, I upheld the appeal, set aside the licence disqualification, and in lieu ordered that he be disqualified from holding or obtaining a licence for seven months. I said I would publish my reasons later. These are those reasons.

7. 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 regulates appeals in criminal matters such as this appeal.

8. Section 208 of that division sets out the decisions of the Magistrates Court from which an appeal may be taken to this court. I held in Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1 at [59]-[64], that this included a decision by the Magistrates Court to reduce the period of automatic disqualification from holding or obtaining a driver licence. That decision has been followed a number of times. I propose to follow it on this occasion also.

9. 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.

10. 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.

11. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

12. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

13. The evidence before the learned Chief Magistrate on sentence was as follows.

14. Mr Newham, who was aged 40 at the time of the offence, is the Director of a mechanical repair company in Canberra. He drives a significant distance in the course of his business, up to 150 to 200 kilometres a day.

15. On 5 August 2011, he was drinking alcohol but over an extended period. He felt he was not so affected that he should not drive. He got into his car and was driving through the suburb of Red Hill onto Hindmarsh Drive. The weather was fine at the time and traffic flow was low.

16. He appeared to be driving above the speed limit and police on patrol in that area accordingly decided to try and stop him. They had formed the view that his driving at the speed at which he was travelling was, in the suburban area, careless.

17. Because of his speed, the police were unable to signal him to stop until he had entered the suburb of O'Malley. He did stop and, when asked, produced his driver licence. He was subjected to a screening test, which proved positive. Police formed the opinion that he was moderately affected by alcohol. He was taken into custody and subjected to a breathalyser test which resulted in the analysis of 0.085 grams of alcohol per 210 litres of breath. This was a Level 3 reading under s 4E of the Alcohol and Drugs Act, which ranges from 0.08 to less than 0.15 grams. He was arrested and charged as noted above (at [3]).

18. He had one prior conviction for a similar offence on 21 November 2006. Thus, under s 4F of the Alcohol and Drugs Act, he would be, on conviction for the offence with which he had been charged, a repeat offender. Relevantly, he had, in fact, two such offences on his record, the one in 2006 and one also in 1992, as well as convictions for speeding in 1993 and 1996.

19. His counsel submitted, without objection or contradiction, that he had been under severe financial strain at the time and had personal problems. It was submitted that this had led him not to act responsibly on this occasion.

20. Several references were tendered on his behalf. They all disclosed knowledge of the offence, as is appropriate, and attested to his good character. He was described as professional and dedicated to ensuring his business was conducted at the highest standard. One confirmed that he had been under financial pressure at the time as well as experiencing "significant personal difficulties". Two of the referees referred to the strain that the inevitable loss of licence would place on his business, and that, because of the hours required, public transport would not be available. He would also lose the ability to provide professional services personally to the business of one of the referees. A reference also referred to the disadvantage that would be suffered by his wife and two young children.

21. Counsel for Mr Newham submitted that the effect on his business would justify a lesser period of disqualification. He had already employed someone to drive for him but that person had recently left to go overseas for Christmas. He also noted that Mr Newham was on call 24 hours a day 7 days a week. In answer to a question from the learned Chief Magistrate, his counsel submitted that Mr Newham was himself, in some cases, expected to drive for the client. His home location also made public transport difficult.

22. The learned Chief Magistrate referred to the penalty for the offence, namely a maximum of ten penalty units (a fine of $1 100) or imprisonment for six months and an automatic disqualification of the offender's drive licence for three years, reducible to not less than six months.

23. The learned Chief Magistrate referred to the offence and his plea of guilty "on an early occasion". She accepted that the reading was a low Level 3 reading and, although noting the manner of driving, properly declined to consider it aggravated the offending on that account. She noted that this was his third offence, though the first was in 1992.

24. Her Honour noted the impact on his business and, in particular, the relationship with his clients and suggested that in sentencing she had "some recognition of the fact that the leniency that I can apply in relation to that is limited." Presumably, this meant that there was a minimum period below which she could not reduce the disqualification.

I do take into account your early guilty plea and I have afforded a discount of 25% on the penalty that I would otherwise have imposed, and I have reduced by a few further months the amount of the disqualification to limit the impact upon your employees and your family, rather than directly on you of the impact on your business. Taking all of those factors into account you are dealt with as follow [sic]. You are convicted, you are disqualified from holding or obtaining a driving licence for a period of 2 years from today until 7 December 2013. You will be fined $660 which reflects the relatively low reading in the Level 3. You will be required to pay court costs of $67 and a contribution to the Criminal Injuries Compensation Fund of $50, which totals $777.

26. On 16 December 2011, Mr Newham appealed against the sentence. The appeal was, as noted above (at [5]), limited to challenging the period of disqualification.

27. The ground of appeal was that the period of disqualification was excessive.

28. While s 216 of the Magistrates Court Act stayed the disqualification, Mr Newham did not in fact drive pending the hearing of the appeal. Indeed, he surrendered his licence to the Road Traffic Authority on 19 December 2011. This was accepted by the Respondent to the appeal.

29. On the appeal, Mr Newham tendered an affidavit. This amounted to further evidence under s 244 of the Magistrates Court Act. The Respondent consented to its tender and I accepted it under s 214 (3)(b) of that Act.

30. In it, he deposed that he had surrendered his licence on 19 December 2011.

31. It also showed that Mr Newham had experienced direct loss in his business as a result of the loss of his licence. He had employed an additional apprentice "to assist [him] with transportation". Unfortunately, that person had to take leave for a fortnight in December and he had to employ a further additional employee apparently for that period. He then employed an additional apprentice because of their obligations to attend instruction one week in five, so as to give him continuous transport assistance.

32. There were some other difficulties because of absences. I am not sure that they can themselves be taken into account for they were vicissitudes of life which can occur at any time. Nevertheless, the employment of the two additional apprentices was a direct result of his loss of licence.

33. He gave an estimate of the additional costs to the business, which were substantial. They are, it seems to me, proper to be taken into account. See, for example, Hamilton v Spalding [2010] ACTSC 160 at [10]; Shires v Edwards [2011] ACTSC 132 at [82]; Dixon v David [2012] ACTSC 42 at [8]-[9].

34. In Re Attorney-General's Application (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 (Guideline Judgment), Howie J, with whom the other members of the Court agreed, in expounding the guideline (at 340; [146]) noted that a good reason to reduce the automatic period of disqualification included the nature of the offender's employment.

35. Mr Newham also referred to difficulties he found in his business because of the significant benefit provided in his personal interaction with customers by himself driving their cars. He had found his lack of ability to do this "already impacting negatively on my business".

36. He referred, too, to difficulties his family experienced as they had a range of extra-curricular activities for which public transport was inappropriate or unavailable.

37. Mr J Sabharwal, counsel for Ms Newham, submitted that her Honour erred in her decision when she said in reference to the length of disqualification that "the leniency that I can apply ... is limited." He referred to my reference in Shires v Edwards [2011] ACTSC 132 at [82] to the fact that the need of a licence for employment was a relevant factor to be taken into account and may provide a basis for the reduction in the period of disqualification.

38. He submitted that the grounds were strong in support of a significant reduction.

39. It is clear that the period of licence disqualification under s 33 of the Alcohol and Drugs Act following an offence such as that for which Mr Newham was convicted is a penalty. That is shown in the Guideline Judgment (at 333; [116]) and, relevantly, has been re-inforced by the decision of the High Court in Rich v Australian Securities and Investment Commission [2004] HCA 42; (2004) 220 CLR 129 at 147; [37] (Rich's Case). See also Miles v Police [2009] SASC 181; (2009) 104 SASR 127 at 142; [57] and the cases there cited.

40. It has, however, a dual purpose and is also for the protection of the community R v Bennett [2011] SASCFC 68 at [26]. That is not inconsistent, as was made clear in Rich's Case, where the Court appeared to accept (at 145; [34]) that when considering the period of a licence suspension the issue of protection of the community is important.

41. The licence disqualification, as a penalty, has also to be considered in the light of the other parts of the sentence and taken into account as a whole. See Barac v Thexton [2008] ACTSC 137 at [55].

42. As to the period of disqualification, the court must make a judgment about the period needed to punish and deter the offender and to protect the community. In particular, it is necessary to take into account the hardship that deprivation of licence will cause and avoid disproportionate and unnecessary hardship: Miles v Police at 144; [67].

43. Her Honour approached the question mathematically. I have elsewhere suggested that this is inappropriate: Hugg v Driessen [2012] ACTSC 46 at [52]. Gray J made the same point after an extensive analysis of the authorities on multiple sentencing in R v Copeland (No 2) (2010) 108 SASR 398 at 410; [29] where his Honour said:

There is a need to avoid the artificiality of a sentence that might follow where the sentencing judge approaches the task mathematically at the cost of weighing all relevant factors which determine the criminality of the defendant's conduct. (citations omitted)

44. I comment only that the same approach is necessary to determine the weight to be given to subjective factors.

45. It seems to me that her Honour also appeared to approach the automatic disqualification period incorrectly. It is neither a tariff (that is, a sentence standard: R v Sumner [2007] SASC 376 at [78]) nor a maximum (Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]). The default period can be reduced, to a statutory minimum, for "sufficient and appropriate reason": Guideline Judgment at 336; [127]. It is inevitable that there will be hardship, but it must be proportionate to the offence and the penalty for it and the need to protect the community. It can take into account various factors, including the nature of the offender's employment, the absence of viable alternative transport and sickness or infirmity of the offender or another: Guideline Judgment at 340; [146]. As an example, see R v Bennett at [26].

46. To start from the automatic or default period and then reduce it as if a maximum or a tariff is, in my view, an error. A sentencer needs to identify whether there is a sufficient and appropriate reason to reduce the period and, if so, to determine what period, not less than the statutory minimum, is necessary to penalise the offender and protect the public. That the learned sentencing Magistrate did not do and, in my view, her Honour thereby came to a manifestly excessive period.

47. The period ordered by her Honour must be set aside.

48. I have to consider whether there is a sufficient and appropriate reason to reduce the automatic period of disqualification and, if so, to what period I should reduce it.

49. It seems to me that the hardship to him and his business, that is imposed by Mr Newham's loss of licence, is a sufficient and appropriate reason to reduce the period of disqualification. I need, then, to consider the relevant factors, both as to penalty and protection of the community, to arrive at an appropriate period.

(i) the level of the reading, which was a very low Level 3 reading;

(ii) the prior offences, two of which were similar offences (one was a higher reading and four and a half years ago, the other nearly twenty years ago) and two speeding fines twelve and fifteen years ago;

(iii) the manner of his driving, which, though not careless, was at speed through suburban streets, which, with alcohol impairment, presents a serious risk;

(iv) the significant reliance his employment places on his licence and the cost and hardship the loss of licence causes;

(v) that he surrendered his licence on 19 December 2011 and has not driven since the disqualification was made, which, to me, has a similar effect to a pre-sentence automatic prohibition (see Police v Waller [2011] SASC 232 at [13]);

(viii) the fact that he drives constantly for his employment, thus being on the road for well above the usual driving period of a member of the community; and

(ix) his positive good character (in the sense referred to in Goundar v Goddard [2010] ACTSC 56; (2009) 240 FLR 176 at 184; [45]-[47]).

51. In all the circumstances, I considered that a period of eleven months was a sufficient penalty to penalise Mr Newham and to protect the community, but reduced it by a rounded period of four months because of the period during which, despite the stay under s 216 of the Magistrates Court Act, he had not driven because he had surrendered his licence, which period was actually four months and eight days. I did not consider that it is necessary in the circumstances to make allowance for those eight days.

I certify that the preceding fifty-two (52) 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