The applicant's counsel provided the magistrate with considerable detail in relation to her personal circumstances. At the time of offending, she was aged between 31 and 32 years. Apart from the conviction arising from the offence committed on 25 March 2024, she had no prior convictions under the Road Safety (Alcohol and Drugs) Act. The only matters in her criminal record were several traffic offences of a different nature, in particular speeding and seat belt offences. The applicant had had a difficult life leading up to her commission of the offences. She had suffered significant injuries in a motor vehicle accident at the age of 17 and had suffered from depression and anxiety for most of her life. She had been the victim of significant family violence in a prior relationship, which ended with the suicide of the perpetrator of that violence. According to her counsel, the trauma and difficulties in her life had led to the development of a problem with illicit drugs. During the offending period, her difficulty with illicit drugs was significant and uncontrolled.
The applicant has two children from the relationship already discussed. They are currently aged 11 and 5. They both have autism. According to a letter from a government agency providing support to the applicant in respect to the younger child, he has extremely high needs which place significant pressure on the applicant. The letter describes this as "relentless and exhausting" for her.
The applicant's counsel told the magistrate that by the beginning of 2025, the applicant had her drug problem under control and was in a new and stable relationship.
With respect to the offending, the applicant's counsel made the point that the offences had been committed during the worst of the applicant's drug problem, when she was also under significant pressure with respect to the care of her high needs' children. In respect of one of the disqualified driving offences, she had decided to risk driving in order obtain some nappies for the younger child. She was residing in a women's shelter at the time and there were difficulties calling a taxi because of a condition of her residence there that she was not to disclose its location to any person. Her counsel did not seek to excuse or mitigate the other offences.
This information concerning the applicant's personal circumstances was not challenged by the prosecution and was accepted by the magistrate. His Honour stated that he regarded the applicant as a first offender in respect of the offence committed on 10 February 2024 but thereafter noted that all other offences post-dated the offence for which the infringement notice had been issued on 25 March 2024. The magistrate had been told by the prosecutor, and his Honour proceeded on the basis, that all of the driving with drug in oral fluid offences, apart from the one in February, were subsequent offences within the meaning of s 17(1) of the RSAD Act. This would seem to be correct in relation to all of the offences on and after 20 July 2024, but I doubt that it includes the offence committed on 29 March 2024. The magistrate seemed to regard the conviction date in respect of the infringement notice as the date on which the offence was committed, that is 25 March 2024, but this is not consistent with the statutory provisions relating to infringement notices. In respect of a charge under s 6A, an infringement notice under s 18A would not be served on the day of the offence and, in any event, would not take effect until the conditions set out in s 20 of the MPEA had been met. It is only then that the offence is taken to be a conviction. It is almost certain that that would be at a time later than 29 March, although the magistrate was not provided with any information about this. It follows that there was a strong probability that the information provided to the magistrate, which included the offence on 29 March as a subsequent offence, was incorrect. However, the balance of the offences were subsequent offences because, as explained, the conviction must have been in place prior to the commission of the July offence. Having regard to the way the matter was dealt with by the magistrate, I do not think that the error concerning the offence of 29 March is material in the sense in that it has had any significant consequence on the sentence. Further, the error was not relied upon as a ground of review.
In his comments on passing sentence, the magistrate noted that the ongoing offending after 25 March was persistent. His Honour commented that continuing to drive after being served with the road safety disqualification notice in August was defiant and a serious matter. It was quite clear that the magistrate considered all of the offending, including driving whilst disqualified, to have a high level of objective seriousness. However, he also accepted the mitigating features that had been put to him including the difficult aspects of the applicant's personal circumstances, her cooperation with police, and the applicant's pleas of guilty.
Although the applicant indicated that she was not concerned about the suspended sentence of imprisonment, it is a reasonable observation that, when taken with the disqualification, the sentence is a severe one. A custodial sentence, albeit suspended, should be imposed only when no other sentence is appropriate. The sentence can be regarded as severe because although the applicant's offending was comprised of a number of offences over a significant period, and demonstrated persistent offending, she had not previously been dealt with by a court for similar offences. It was noted by the magistrate that although the effect of the infringement notice in relation to the 25 March offence meant that the applicant was taken to have been convicted of that offence, it was not an order of the Court and hence the more serious view that would be taken of ongoing offending if she had previously been before the Court was not applicable.
Notwithstanding this, the offences are inherently serious. As with drink driving, driving while an illicit drug is present in the driver's body is behaviour that directly impacts on the safety of other road users as well as the perpetrator and any passengers. The disqualified driving offences were also serious. The disqualification had been imposed as a deterrent. The applicant drove soon after being disqualified. Driving while under disqualification defies and undermines the system of enforcement put in place by the legislation to deter and ultimately prevent the real danger posed by driving offences such as those committed in breach of s 6A. This is so even when a person has a good reason to be driving. The need to promote and support public safety is the paramount consideration when sentencing for such offences. This legislative purpose is consistent with the penalties prescribed for both driving with drug in oral fluid and disqualified driving. These penalties include both the possibility of imprisonment and disqualification. For a first offence under s 6A, the penalty includes a maximum of three months' imprisonment and for a subsequent offence six months' imprisonment. For each of the driving whilst disqualified charges, the penalties include a maximum of three months' imprisonment.
I am of the view that a sentence of imprisonment was warranted in this case. Further, in considering the severity of that sentence, it is necessary to have regard to the fact that the sentence was entirely suspended. Although a sentence of imprisonment, suspended or otherwise, should be imposed only where a custodial sentence is warranted, when assessing the punitive impact of the sentence for the purpose of the ground of review applicable in this case, it is appropriate to have regard to the actual effect of the entire sentence which includes both the fact that it was wholly suspended and the punitive impact of the disqualification.
In respect of the disqualification, I am of the view that the magistrate adopted a relatively lenient approach. In respect of the s 6A offences, the legislation requires mandatory disqualification. For first offences, there is mandatory minimum disqualification of three months and a maximum of 12 months, and for subsequent offences, a mandatory minimum of six months and a maximum of 24 months. On the basis that the first two s 6A offences were first offences and the balance subsequent offences, the aggregate minimum is 18 months and the aggregate maximum 72 months. While it might be technically possible to impose mandatory disqualifications which are served concurrently, the offences in this case were committed at separate times and represented persistent and repeated offending conduct. It was appropriate to impose cumulative disqualifications. Further, in respect of each disqualified driving offence, although there was no mandatory minimum, each offence carried a maximum disqualification of three years. In my view, the global disqualification imposed by the magistrate of 29 months, when regard is had to the objective seriousness of the offences and the range of disqualifications provided by the legislation, including the mandatory minimums, can be considered relatively lenient. When taken together with the suspended sentence of imprisonment, I am satisfied that the overall sentence was well within the sentencing discretion of the magistrate.
It follows that the ground asserting manifest excess has not been made out. The motion is dismissed.