Piper v Hall [2013] ACTSC 207

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appeal is upheld.
2. The appellant is re-sentenced as follows:
   • (a) The appellant is fined $500.
   • (b) The appellant is disqualified from driving for 12 months.

1. Madeleine Piper was charged with a Level 3 driving offence as a repeat offender for the purposes of s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). On 21 January 2012, Ms Piper was stopped in Flemington Road, Lyneham by police conducting random breath tests. When tested, she produced a blood alcohol reading of 0.124. Police formed the view that she was moderately affected by alcohol.

2. In the Magistrates Court, Ms Piper was convicted, fined $500, and disqualified from driving for two years.

3. Ms Piper appealed against her sentence on grounds expressed in the notice of appeal as follows:

1. manifest excess;
2. too much weight was given to evidence that the appellant was intending to carry a passenger;
3. too little weight was given to the appellant's family responsibilities;
4. there was error in treating the fact that the appellant was a repeat offender as an aggravating factor on sentence.

4. Fifth and sixth grounds were later added, being:

(a) that his Honour erred in treating the default disqualification period as a tariff or maximum; and

(b) that his Honour gave insufficient weight to a plea of guilty.

5. Ground 2 of the original grounds of appeal was abandoned.

6. On 23 November 2012, I heard Ms Piper's appeal, upheld it on the ground that the sentence was manifestly excessive, and said that I would provide reasons later. These are my reasons.

7. The manifest excess argument in fact incorporated several of the other grounds of appeal, which may be seen as particulars of why the sentence was said to be manifestly excessive.

8. As to Ms Piper's subjective circumstances, I note that she was, in counsel's words "a single working mother [who] requires the use of a motor vehicle to take her children to and from child care and to get to her place of employment". Another relevant issue was that although Ms Piper was a repeat offender, her earlier relevant conviction was in 2004, nearly eight years previously when she must have been barely 17 years old.

9. Counsel also submitted that, in effect, the punishment for being a repeat offender is built into the higher penalties provided for repeat offending, and repeat offending should not also be treated as an aggravating feature of a particular offence.

10. Although it is only indirectly relevant to the manifest excess ground, I note also that although his Honour the sentencing Magistrate said that the plea of guilty was made at the earliest possible time, it is not apparent from the sentencing remarks that any particular sentence reduction was provided in recognition of that.

11. Having identified the factors, as outlined above, that might have entitled Ms Piper to some degree of leniency, it is necessary to look at the applicable sentencing range to which that leniency might have been applied. In Mwauluka v Turkich [2013] ACTSC 1, another appeal from the Magistrates Court against a sentence for a high range drink-driving offence, I said:

47. Several cases were drawn to my attention as showing the Supreme Court's approach to disqualification periods for relevant drink-driving offences, including at least, in roughly chronological order:

Hammond v RTA and Anor [2006] ACTSC 125

McGregor v McGuire [2008] ACTSC 7

Barac v Thexton [2008] ACTSC 137

Kamara v Stone [2010] ACTSC 92

Shires v Edwards [2011] ACTSC 132

Kennedy v Egan [2011] ACTSC 163

Hugg v Driessen [2012] 261 FLR 324

Flanigan v Cook [2012] ACTSC 71

Newham v Cogle [2012] ACTSC 76

Sheather v Bishop [2012] ACTSC 77

Krewaz v Jordan [2012] ACTSC 84

Dawson v Coles [2012] ACTSC 147

48. There is no need to canvass the detail of each of those decisions, but they covered Level 3 and 4 blood alcohol results, and involved mainly first offenders or those whose previous drink-driving offences were at least five and in some cases many more years earlier. In that group of decisions, few of the disqualification periods imposed on appeal exceeded 12 months. Repeat offenders, especially those whose previous offences were more recent, were likely to receive disqualifications of up to 24 months on appeal. In Scott v Wynants, Higgins CJ said at [14] in relation to Level 4 offences (which carry a default disqualification period of five years):

It is significant that a statistical analysis of previous matters of a like kind (that is, high range repeat offenders) in the ACT Magistrates Court reveals a routine reduction of the default period from five years to between 18 and 24 months.

12. As a Level 3 repeat offender, Ms Piper was liable to a default disqualification period of three years. Having regard to the circumstances of her offence, and her personal circumstances, I was satisfied that there was a basis for imposing a disqualification period less than the default disqualification period. Having regard to those matters and the appropriate sentencing range apparently indicated by the cases mentioned above, I concluded that the appropriate disqualification period was 12 months. I also concluded that there was no basis for varying the $500 fine imposed by the Magistrate. Ms Piper was re-sentenced accordingly.

13. Recently, Ms Piper sought to re-open the matter, in reliance on s 61 of the Crimes (Sentencing) Act 2005 (ACT), to deal with a problem that had arisen since she was re-sentenced. The problem arose from a combination of factors.

14. First, in imposing a new disqualification period of 12 months, I noted that since Ms Piper had already served eight days of the disqualification period imposed in the Magistrates Court before she lodged her appeal, thereby staying the sentence, the effective disqualification period was 11 months and 22 days.

15. That comment was intended as an explanation to the offender of the effect of the sentence, and was also intended to ensure that the eight days was recognised in any recalculation of when Ms Piper's disqualification period ended. It was not intended to be part of my order. Unfortunately, it was recorded as such, and included in the formal court order.

16. The reference to "effective disqualification period" may have caused some confusion to officers in the Transport Regulation area of the Justice and Community Safety Directorate.

Suspension served before Magistrates Court sentencing

17. More significantly, it seems that Ms Piper had also served 65 days suspension from driving under a suspension notice given to her by police officers when she was charged with the drink-driving offence. Under s 35(2) of the Road Transport (Alcohol and Drugs) Act, any such suspension period is to be set off against any disqualification period eventually imposed in respect of the offence concerned. Thus, the 12 months disqualification I imposed should have been implemented so as to disqualify Ms Piper from driving for a period of 12 months less the eight days already mentioned and the original 65 days suspension, giving an effective suspension, from the day I re-sentenced Ms Piper, of 292 days.

18. However, due to an oversight, the 65 days suspension was not mentioned in the Magistrates Court, and nor was it mentioned before me. A Transport Regulation officer has advised Ms Piper's lawyer that "to reduce the period by the time served under the section 61B suspension, we would need an amended court order from the Supreme Court."

19. The officer's caution is said to arise from an interpretation of s 35 of the Road Transport (Alcohol and Drugs) Act by the Transport Regulation area. Section 35(3) is as follows:

However, subsection (2) does not apply if, on hearing the charge for the immediate suspension offence, a court is satisfied that the person did not comply with the immediate suspension notice.

20. It seems that the officer concerned has interpreted section 35(3) as requiring, in order for s 35(2) to apply, that the court positively find that the person concerned did comply with the suspension notice. I cannot see any basis for reading a provision that clearly says that subsection (2) does not apply if a court makes a particular finding as if it said that subsection (2) does not apply unless a court makes a contrary finding.

21. Alternatively, it is possible that the administrative concern about the effect of s 35(3) arises from the incorporation, in the official record of my re-sentence, of the explanation referring to an effective sentence of 11 months and 22 days. That is, the re-sentence order might have been read as implying a determination that there was no period of compliance with the suspension notice that needed to be set against the new disqualification period.

22. Accordingly, and rather than pursuing in these circumstances the real basis of the Transport Regulation officer's refusal to take account of the 65 days, I propose to correct my original re-sentence as follows, by making the following orders:

1. Madeleine Piper is disqualified from driving for 12 months.
2. There is no finding for the purposes of s 35(3) of the Road Transport (Alcohol and Drugs) Act that Ms Piper did not comply with her immediate suspension notice.
3. The period of disqualification remaining to be served is a period calculated by deducting, from 12 months, the total of the following periods:
   • (a) in accordance with s 35(2) - 65 days served under the suspension order issued on 21 January 2012;
   • (b) eight days served after Ms Piper was sentenced in the Magistrates Court and before her appeal was lodged;
   • (c) the period between Ms Piper's re-sentencing on 23 November 2012 and today.
4. The period of disqualification is to end at the expiration of the period that:
   • (a) is calculated under Order 3 (that is, 12 months less the total of the periods specified in Order 3(a), (b) and (c)); and
   • (b) starts today.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.