Roseby v Harman [2014] ACTSC 125

Director of Public Prosecutions Act 1990 (ACT), s 6(1)(c))

Legislation Act 2001 (ACT), s 133

Magistrates Court Act 1930 (ACT), Div 3.10.2

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4, 8, 12, 19, 26

Baverstock v Abbott [2005] ACTSC 24

Clearihan v East (Unreported, ACTSC, 2 August 1989, Miles CJ)

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257

Commissioner for Taxation v Baffsky [2001] NSWCCA 332; (2002) 192 ALR 92

Davis v Conroy [2005] ACTSC 8

Dixon v David [2012] ACTSC 42

Gordon v Reddin [2013] ACTSC 87

Hevesi-Nagy v Sarhan [2013] ACTSC 124

Hoang v Garrett [2011] ACTSC 169

Lumby v Cooper [2008] ACTSC 53

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

McKellar v Woolcock [2013] ACTSC 225

McLeod v Evans [2013] ACTSC 277

Morris v East (1988) 83 ACTR 1

O'Toole v Scott [1965] AC 939

Re Attorney-General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 3 of 2002) [2004] NSWCCA 303; (2004) 147 A Crim R 546

R v CV [2013] ACTCA 22

R v Elbadar [2012] NSWSC 1492

Sladic v Proud [2013] ACTSC 232

Sutherland v Luchetti [2013] ACTSC 196

Travini v Starczewski [2009] ACTSC 123; (2009) 235 FLR 14

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Woodlee v Callaghan [2013] ACTSC 60

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The conviction and sentence entered and imposed by the Magistrates Court on 5 November 2013 be set aside.

3. The offence that Samuel Duncan Roseby, having been a driver of a motor vehicle on a road, had, within two hours of driving, the prescribed concentration of alcohol in his breath be found proved.

4. Samuel Duncan Roseby be required, under s 17 of the Crimes (Sentencing) Act 2005 (ACT), to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months from today.

1. On 23 August 2013, the appellant, Samuel Duncan Roseby, was, after driving a motor vehicle, subjected to breath analysis under the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act), which showed a concentration of 0.094 grams of alcohol in 210 litres of his breath, being a prescribed concentration of alcohol.

2. He was charged with an offence against s 19(1) of the Alcohol and Drugs Act, namely that, having been a driver of a motor vehicle on a road, he had, within two hours, the prescribed concentration of alcohol in his breath.

3. On 5 November 2013, he appeared in the Canberra Magistrates Court and pleaded guilty.

4. His counsel submitted that the matter could properly be dealt with under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), that is by a non-conviction order, but the learned Magistrate declined to do so and convicted Mr Roseby. Her Honour imposed a fine of $300 with costs and levies and reduced the default period of disqualification from holding or obtaining a driver licence to a period of three months.

5. Mr Roseby has appealed against the entry of a conviction.

6. Such an appeal is brought under Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act), which gives this Court jurisdiction to hear and determine such appeals.

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

8. In summary, the sentence imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I may 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.

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 reimpose the same sentence.

10. 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.

11. The Notice of Appeal was filed on 2 December 2013. In it, the grounds of appeal were set out as follows:

1. Her Honour erred in convicting the appellant in that she either failed to take into account adequately or at all:

1. The appellant's lack of antecedents; 2. The appellant's significant contrition and remorse;

1. The appellant's driving experience; 2. The extenuating circumstances in which the offence was committed and the lack of any aggravating circumstances; 3. The low level of objective seriousness of the offence; 4. The likely hardship caused as a result of the disqualification of the appellant's drivers licence;
2. Further, and in the alternative, on the facts presented to Her Honour, the sentence imposed is unreasonable or plainly unjust.

1. Further, and in the alternative, Her Honour erred in convicting the appellant and imposing a sentence that is manifestly excessive.

12. On 23 August 2013, Mr Roseby was driving a motor vehicle south on Yarra Glen, Deakin, with no passengers in his vehicle, when he entered a random breath testing site. No manner of driving drew the attention of police to the motor vehicle Mr Roseby was driving.

13. He underwent a breath screening test under s 8 of the Alcohol and Drugs Act and the result of the test indicated that he had the prescribed concentration of alcohol in his breath.

14. He was taken into custody to the Woden Police Station for the purpose of undergoing breath analysis and later provided a sample of his breath in accordance with a direction by a police officer under s 12 of the Alcohol and Drugs Act. The sample of breath was analysed and disclosed that he had 0.094 grams of alcohol per 210 litres of his breath.

15. This is the prescribed concentration of alcohol in his breath under s 4C of the Alcohol and Drugs Act. Under s 4E of that Act, there are four levels of the prescribed concentration which determines the seriousness for sentencing purposes. Mr Roseby was subject to Level 2 and the concentration in his case was at Level 3.

16. As a result, Mr Roseby was charged with the offence to which I have earlier referred (at [2]).

17. The police officer who administered the breath test formed the opinion that Mr Roseby was slightly affected by alcohol and described him as co-operative.

18. Mr Roseby was summonsed to appear in the Magistrates Court on 24 October 2013. His counsel appeared on that day and indicated that a plea of guilty would be entered.

19. The matter was adjourned to 5 November 2013 when Mr Roseby appeared in person and entered the plea of guilty.

20. The facts were read to the learned Magistrate and three references were tendered. One was from his supervisor at his employment who described him as "a highly respected member of [his] team and is extremely well regarded by colleagues and managers".

21. It referred to the fact that he was "going through a difficult period in life with the recent death of his cousin after a long illness" and that he was "very close" to his cousin.

22. A reference from another supervisor described him as "a model public servant" who had "a high level of responsibility and is a very highly respected member of the public service".

23. That referee noted that he had taken a year off without pay in 2007 to work as an Australian Youth Ambassador for Development in Cambodia, where he was employed to build up a local not-for-profit non-governmental organisation involved in community development and assisting impoverished farmers.

24. It described Mr Roseby as a "kind, honest, caring and altruistic" person who "cares deeply for his family and those around him".

25. The third reference was from a long time friend who attended school with him. The referee noted that Mr Roseby had "expressed ... his shame and remorse at his immature behaviour" and that he was "very upset as having been arrested". The referee noted that he did not normally drink alcohol but noted that he had been "under a good deal of stress due to his cousin's difficult battle with terminal cancer and recent death". It described Mr Roseby as "decent, kind and trustworthy".

26. At the time of the offence, Mr Roseby was thirty-five years old, with eighteen years driving experience. He had no prior convictions and holds a senior position in the Australian Public Service. It was submitted that he was driving only for a short distance and at a time when the roads were not busy. It was submitted that the reading was at the lower end of the scale for Level 3 offences which, under s 4E of the Alcohol and Drugs Act, is between .08 grams or more but less than 0.15 grams of alcohol in 210 litres of breath.

27. The circumstances submitted to the court were that he was, at the time, under stress from the terminal illness of his cousin and also the breakdown of his own relationship with his then partner. He arranged to meet with a friend after work to discuss these matters. He acknowledged that it was a poor decision that he made then to drive, but he had been struggling with depression for some years and was medicated at the time.

28. It was noted that while a licence was not crucial to his work it would make his capacity to see family members, who are spread throughout Canberra and Queanbeyan, considerably more difficult.

A reading of 0.094 is more than a little slip. It seems to me that considering those matters set out in s 17, there is nothing particularly remarkable. Many people have unfortunate circumstances that surround their making of this type of mistake but there is not, in my view, sufficient context shall we say that a s 17 would be appropriate for a reading of this level so I decline to exercise my discretion in relation to s 17.

30. Her Honour then proceeded to sentence, Mr Roseby. She said that she took into account the purposes and factors of sentencing set out in the Sentencing Act and the statement of facts. She assessed the objective seriousness as "toward the lower end of objective seriousness of this type of offence", noting that it was a random check rather than the manner of driving that alerted police to Mr Roseby's conduct.

31. She indicated that she took account of his plea of guilty and, in imposing sentence, indicated that the fine of $300 was "reduced from $350 which it would have been but for [the] guilty plea".

32. She took into account his age and personal circumstances and particularly noted his mental health. She took into account the fact that he had no criminal record and accepted the references, concluding that he was a person of good character.

33. She noted his driving record and his employment, which, she noted, "makes in and of itself a contribution to the community in Australia" and also his contribution to communities overseas. She considered that deterrence was relevant requiring her to impose a penalty to deter Mr Roseby "from engaging in this type of conduct again" as well as "to deter others", noting that this was "an issue of protection of the community".

34. Her Honour noted the compromising effect on reaction times that the disclosed level of alcohol in his system would cause. Of this, there can be no doubt.

35. Her Honour then convicted Mr Roseby and fined him as referred to earlier (at [4]) and also ordered him to pay $71 court costs, $50 criminal injuries compensation and $50 victim's service levy. Her Honour then said

I take into account all of the subjective factors in relation to your circumstances that you currently find them in and particularly the requirement for you to have support from your family at this time. There are therefore sufficient and appropriate reasons for me to reduce from the default or automatic period of 12 months disqualification. You are therefore disqualified from holding or obtaining a driver's licence for a period of three months.

36. Section 26 of the Alcohol and Drugs Act sets out the penalties appropriate for an offence against s 19 of that Act. Where the defendant is a first offender, the maximum penalty for driving with a Level 3 prescribed alcohol concentration is ten penalty units, or imprisonment for six months, or both. Interestingly, that is the same maximum penalty for a repeat offender, suggesting that the penalty actually to be imposed on a first offender would ordinarily be at the lower end of that penalty range to allow for an appropriate penalty where the offender has already committed an offence. A penalty unit is $140: s 133 of the Legislation Act 2001 (ACT) (Legislation Act). Thus, the maximum fine was $1,400.

37. Section 32(3) provides for the automatic disqualification from holding or obtaining a driver licence of a first offender upon conviction. It provides:

(3) If a court convicts a person other than a special driver of an offence against section 19(1) and finds that the concentration of alcohol in the person's blood or breath was at level 2, 3 or 4, the person is automatically disqualified from holding or obtaining a driver licence for-

(a) the period mentioned in the item applying to that level in table 32, column 4; or

(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in that item, column 3 - the shorter period.

38. Table 32 provides for a Level 3 offence that the automatic disqualification period (described in the table as the "default disqualification") is twelve months and the minimum disqualification period is three months.

39. As noted above (at [4]), Mr Roseby's counsel sought a non-conviction order which is available under s 17 of the Sentencing Act. That section relevantly provides:

17 Non-conviction orders - general

(1) This section applies if an offender is found guilty of an offence.

(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.

(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;

(b) the seriousness of the offence;

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

(4) The court may also consider anything else the court considers relevant.

40. The High Court has authoritatively determined the way the discretion involved in a provision like s 17 of the Sentencing Act should be exercised. In Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 the High Court considered the equivalent South Australian legislation. It was, to some extent, in different terms but the effect is relevantly identical. In that case, Windeyer J said (at 276):

... the magistrate must be of opinion that the exercise of the power is expedient because of the presence and effect of one or more of the stated conditions, namely character, antecedents, age, health or mental condition. One of these by itself, or several of them taken together, must provide a sufficient ground for a reasonable man to hold that it would be expedient to extend the leniency which the statute permits. The Act speaks of the court exercising the power it confers "having regard to" the matters it states. I read that as meaning more than merely noticing that one or more of them exists. Its, or their, existence must, it seems to me, reasonably support the exercise of the discretion the statute gives. They are not mere pegs on which to hang leniency dictated by some extraneous and idiosyncratic consideration. But they are wide words. None of the matters they connote is necessarily to be regarded in isolation from the others, or apart from the whole of the circumstances of the offender and the offence.

41. The approach of the majority, Barwick CJ, Kitto and Owen JJ at 265, is instructive. They held that there was sufficient material to justify the exercise of the discretion under the Act. They set out the facts which the learned Magistrate took into account and, although expressing some uncertainty about one of the considerations, held that there was sufficient material on which the court could proceed.

42. That is important because there has been a suggestion by Spigelman CJ in Commissioner for Taxation v Baffsky [2001] NSWCCA 332; (2002) 192 ALR 92 that there may be a difference in approach between what Windeyer J said and the majority in Cobiac v Liddy. Spigelman CJ commented (at 99; [24):

Windeyer J appears to apply a test that one of the specified matters must of itself justify the finding of inexpediency, but that in determining that question the full range of relevant considerations may be taken into account. The joint judgment proceeds on the basis that any matter relevant to the issue of expediency can be taken into account in the ultimate exercise of the discretion, whether or not that factor itself falls within one of the facts and matters specified in the respective subparagraphs [the Commonwealth provision equivalent to s 17.]

43. Spigelman CJ was inclined to think that the "whole of the circumstances of the offender and the offence" referred to by Windeyer J and his broad approach meant that there was little practical difference in the two approaches. I respectfully agree.

44. It is clear that, at least so far as the matters set out in s 17(2) of the Sentencing Act are concerned, the court is required to consider those factors, as noted by Nield AJ in Gordon v Reddin [2013] ACTSC 87 at [15]. See also Travini v Starczewski [2009] ACTSC 123; (2009) 235 FLR 14 at 28; [94].

45. I note in passing that, in Gordon v Reddin, his Honour referred to the appellant as "the Crown". It is, of course, the case that the Crown does not prosecute summary offences in the Magistrates Court; they are commenced by an informant, usually a police officer, in his or her own name, as pointed out by the Privy Council in O'Toole v Scott [1965] AC 939 at 958, though the Director of Public Prosecutions has power to institute such proceedings (Director of Public Prosecutions Act 1990 (ACT), s 6(1)(c)) and to take over proceedings commenced by another person (s 8 of that Act).

46. It is, of course, necessary for the court to identify the factors that the court has taken into account when exercising the discretion under s 17 of the Sentencing Act. So much is clear from what Moore J said in Davis v Conroy [2005] ACTSC 8. See also McKellar v Woolcock [2013] ACTSC 225 at [23].

47. In my view, it must follow that the court is also required to identify the factors it has taken into account when deciding not to exercise its discretion under s 17 of the Sentencing Act.

48. It is also clear from cases such as Lumby v Cooper [2008] ACTSC 53 at [31] that the making of an order under s 17 of the Sentencing Act is not limited to situations where, for example, the making of a conviction will affect the career prospects of the offender. It has a much wider reach than that.

49. It is also not a case of counting up factors for and against such a disposition and subtracting one from the other to give a sentencing outcome. It is clear from what the High Court has said in cases such as Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611 and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 375 that the process is one of instinctive synthesis of all the relevant factors including those mandated by the section.

50. A number of decisions of this court have considered the application of s 17 of the Sentencing Act in the context of drink-driving offences. It is clear, for example, that the requirement for general deterrence in relation to such offences is not necessarily of itself a bar to making such an order: Hevesi-Nagy v Sarhan [2013] ACTSC 124 at [3]. Similarly, it would appear that there is no general proposition that an offender with a prescribed concentration of alcohol at Level 4 could never be given such an order (Woodlee v Callaghan [2013] ACTSC 60 at [10]), though these occasions are likely to be rare (Gordon v Reddin at [16]).

51. In a case where an offender had a Level 3 prescribed concentration of alcohol in his blood or breath and his manner of driving drew the attention of the police to the driver, but he had good character and had been driving for twenty-four years with no prior convictions, a non-conviction order was made in Sutherland v Luchetti [2013] ACTSC 196.

52. A driver, who had a Level 2 prescribed concentration of alcohol in his blood or breath but had ten years driving experience without a conviction, where no other road users were put at risk and where the offender needed his licence to support an elderly relative and for his employment, was granted such an order in Dixon v David [2012] ACTSC 42.

53. An offender, who had a Level 3 prescribed concentration of alcohol in his blood or breath, and who had been driving for just over twenty years with no previous convictions was granted such an order in Hoang v Garrett [2011] ACTSC 169.

54. Factors that this court have relied on to determine that the discretion should not be exercised include prior traffic convictions as in Baverstock v Abbott [2005] ACTSC 24 and Travini v Starczewski. Conviction free passage of time, however, may in an appropriate case remove that problem: Sladic v Proud [2013] ACTSC 232.

55. There clearly needs, of course, to be circumstances that could be regarded as reducing the culpability of the offence (McKellar v Woolcock [2013] ACTSC 225) or making the consequences of a conviction disproportionate (Clearihan v East (Unreported, ACTSC, 2 August 1989, Miles CJ); R v CV [2013] ACTCA 22). These are, of course, not factors that, in themselves have to be present, for the discretion is a wide one and the court must at least take into account the matters set out in s 17(2) and any other relevant matters.

56. It is, of course, clear that this Court will not interfere on appeal from the Magistrates Court unless there is error shown in the sentence or sentencing proceedings. It is not the function of an appellate court to substitute its own views even where the appellate court might well, had it been sitting at first instance, have made such an order: Woodlee v Callaghan at [31].

57. Three matters were addressed in the course of the appeal and I shall deal with them separately.

58. As noted above (at [above]), her Honour imposed a fine of $300 which she said was "reduced from $350 which it would have been but for your guilty plea".

59. Under ss 35 and 37 of the Sentencing Act, the requirement to reduce a sentence and to quantify the reduction of the sentence on a plea of guilty appears to relate, so far as those sections are concerned, to sentences of imprisonment only.

60. As there is then no statutory mandate for such discount quantification in the case of a fine, courts should follow the requirement of the High Court in relation to the obligation to formulate sentence by instinctive synthesis. It is important for the courts to ensure that sentencing does not become some kind of mathematical exercise. Clearly, of course, in that instinctive synthesis, a plea of guilty will form a part and often an important part.

61. In this regard, the submissions of Mr A Doig, who appeared for the appellant, that the level of fine was "approximately at the top end of the bottom third of similar offences" is not really to the point. Particularly in the case of regulatory offences, some penalty is necessary and a reduction of a fine to a very small amount may constitute no real penalty at all. That would be inappropriate for regulatory offences, though, as I have observed above (at [36] above) there must be room for a penal distinction between a first offender and a repeat offender.

62. Perhaps more significant, however, is that the reduction for the plea of guilty was only fourteen percent. I note that Burns J in Hoang v Garrett at [11] suggested that an appropriate discount for an early plea of guilty was twenty-five percent.

63. No explanation was given as to why a substantially lesser discount was given in this case and none is apparent in the material that was before her Honour on sentence.

64. Having said that, the matter is always discretionary and had this been the only error identified, then I would not have upheld the appeal on this ground. It is relevant, however, to a consideration of the matter as a whole.

65. In her remarks on sentencing, the learned Sentencing Magistrate said:

I do need to impose a penalty upon you in my view to deter you from engaging in this type of conduct again and also to deter others.

66. There is no doubt that general deterrence is an important factor in this offence. The serious nature of such offences and the purpose of prohibiting them has been made clear. See, for example, the observations of Miles CJ in Morris v East (1988) 83 ACTR 1.

67. It was difficult to see the basis, however, for her Honour's suggestion that there was a particular need, such as to require specification, for specific deterrence in this case.

68. The only suggestion that was made to me by Mr A Williamson, who appeared for the respondent, was that, because the offence had been committed, specific deterrence was required. That, of course, does not seem to me to accord with principle.

69. There are many cases where the court can be satisfied that an offender is unlikely to re-offend notwithstanding that they have committed the instant offence. Indeed, there are circumstances where specific deterrence is not relevant as an issue at all. See, for example, R v Elbadar [2012] NSWSC 1492 at [28].

70. In this case, there were clearly particular stressors on Mr Roseby relevant to the offending and while it could not be said that such stressors will never re-occur, there was nothing in the evidence to suggest that his remorse and insight and his otherwise good character would make it other than extremely unlikely that he would re-offend.

71. Indeed, in Re Attorney-General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 3 of 2002) [2004] NSWCCA 303; (2004) 147 A Crim R 546 at 578; [142], Howie J, with whom the other members of the court agreed, identified the very kind of circumstance Mr Roseby encountered as suggesting that specific deterrence was not a consideration on sentence.

72. The particular role, however, that specific deterrence played in the imposition of the sentence was not apparently significant in that the ultimate result would appear to be within range.

73. Accordingly, again, were this the only error to have been identified, I would not uphold the appeal on that basis alone or, indeed, in combination with the error arguably made in the unexplained surprisingly small reduction for the plea of guilty. Again, however, it is relevant to a consideration of the matter as a whole.

(iii) Refusal to make an order under s 17 of the Sentencing Act

74. Her Honour commenced her sentencing remarks by declining to make an order under s 17 of the Sentencing Act. I have set those remarks out above (at [29]).

75. Her Honour did not there identify the matters that she had taken into account other than in the most general terms. In particular, she did not refer, in coming to that conclusion, to any of the matters that she was required to take into account under s 17(3) of the Sentencing Act, or whether, as there were, matters that she may take into account under s 17(4) of that Act were considered.

76. Instead, her Honour referred to "nothing particularly remarkable".

77. It does not seem to me that there is a need for anything particularly "remarkable" to be present in the matters to be taken into account before the discretion can be exercised under s 17 of the Sentencing Act.

78. What is required is to identify all the mandated factors together with anything else under s 17(4) of the Sentencing Act that the court considers relevant and assess from that whether the discretion ought to be exercised. That is what can be taken from Cobiac v Liddy.

79. Her Honour later made passing reference to "unfortunate circumstances", which may, although not necessarily, refer to the stress caused by the terminal illness of Mr Roseby's cousin and the breakup of his relationship with his then partner.

80. While that is not a unique circumstance, there is nothing in the legislation to require it or any other of the circumstances to be unique before it is relevant. It is not necessary that an offender have a special stress beyond that of others before the discretion can be exercised in his or her favour: Sladic v Proud at [76].

81. It seems to me that it is inappropriate to place a gloss on the legislation of the kind here involved. All that is required is that one or more of the specified factors provide a sufficient reason for a reasonable person to find that it would be appropriate to make such an order.

82. A sentencing exercise requires a balancing of all the relevant factors so as to show that the discretion to make a non-conviction order is appropriately exercised.

83. While one factor may be particularly relevant or justify such an order (see R v CV [2013] ACTCA 22 at [29]- [44]), so may a combination of factors.

84. No doubt, frequently, the level of the prescribed concentration of alcohol in the offender's blood or breath and the length of conviction free driving will be very relevant factors but may not be sufficient, in themselves, to justify the exercise of the discretion. See McLeod v Evans [2013] ACTSC 277.

85. Nevertheless, neither singly nor in combination are the circumstances required to be remarkable; the court must simply address the relevant factors and determine whether they lead to the court's view that the discretion should be exercised in the particular circumstance.

86. In my view, her Honour erred in her approach to the question. This error would be sufficient, but added to the other two I have identified, it is in my view, a proper basis on which the sentence should be set aside and Mr Roseby re-sentenced.

87. Mr Roseby is thirty-five years old. He has, as attested by his referees, an excellent character and has made a valuable contribution to the community both here and overseas. There is nothing particularly to note in relation to his physical health but he has been struggling with depression for some years and is medicated for that which suggests that it is clinical depression rather than simply a feeling of sadness. Indeed, it appears that he has been in "quite a dark time" of late because of the terminal illness of a cousin, with whom he is particularly close, and the breakdown of his own relationship with his partner.

88. The offence is a serious one but was, with respect, properly described by the learned Magistrate as "towards the lower end of objective seriousness". The reading was at the lower end of Level 3; Mr Roseby was not observed to be only slightly affected by alcohol; he was subject to a random breath test rather than coming to the attention of police by the manner of his driving.

89. There were no particularly extenuating circumstances under which he was driving; there was no immediate need for him to drive.

90. He had eighteen years driving experience which, to date, is conviction free.

91. Mr Roseby pleaded guilty on the first occasion he appeared in court and his counsel indicated that intention to plead at an earlier stage.

92. While all drink-driving puts the community at risk because of the impairment of reaction time, nevertheless, that does not require a conviction in every case.

93. Having considered the relevant matters, I am of the view that the offence can be dealt with under s 17 of the Sentencing Act and I propose to make a good behaviour order.

94. I will require Mr Roseby to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the appellant: ACT Director of Public Prosecutions

Solicitor for the respondent: Ben Aulich & Associates