Scanes v Biziak [2011] ACTSC 168

2. The appellant appeals from the orders made by the learned Magistrate and, in particular, argues that the penalty was excessive. No submissions have been addressed to me relating to the period of disqualification.

3. It is clear that the appellant has a very unenviable history of offences relating to the use of motor vehicles. The offence which was before the learned Magistrate was the appellant's fourth drink driving offence. However, it should be noted that that was over a period of some 10 and a half years. The appellant's first drink driving offence was in October 1998 and was dealt with in the Yass Local Court in November 1998. It is clear that the reading on that occasion was quite low because the appellant was dealt with as a special category driver exceeding the special range. Thereafter, he was next dealt with in the ACT Magistrates Court for an offence of drink driving with a level 4 reading of 0.170 grams of alcohol per 100 millilitres of blood on 21 May 2002, the offence having occurred on 10 March 2002. Accordingly, it was three and a half years between the first offence and the second offence. The third offence of drink driving was dealt with in the ACT Magistrates Court on 6 February 2008, with the offence having occurred on 30 September 2007. That was an offence of driving under the influence of alcohol. Accordingly, there was a gap of five years between the third offence and the second offence.

4. The offence which was dealt with by the learned Magistrate, and which leads to the appeal before me today, occurred on 19 September 2009. As such, it was just on two years after the third offence. In my opinion, the learned Magistrate was correct in determining that a sentence of imprisonment was appropriate with respect to a fourth instance of drink driving or offences relating to the use of motor vehicles whilst under the influence of alcohol. The question is, in reality, whether it should have been a sentence by way of full time imprisonment or something less.

5. The appeal before this Court is not to be conducted on the basis that this Court would have imposed a different sentence if it had been in the place of the sentencing Magistrate. The legislature has seen fit to give responsibility for decision making with respect to sentencing for these offences to Magistrates. This Court should only intervene where error is demonstrated. In particular, this Court should only intervene where there is either an error of law or fact demonstrated in the sentencing process by the Magistrate or, alternatively, where such an error may be inferred due to the sentence being considered to be manifestly excessive.

6. I do not consider that a term of four months imprisonment with respect to the offence which was before the learned Magistrate was manifestly excessive. However, it does appear to me that the learned Magistrate has made an error in the way in which she has approached the question of whether the sentence should be served by way of full time imprisonment or by something less than full time imprisonment.

"I've come to the conclusion that a sentence of imprisonment, whilst a sentence of a sentence of (sic) the last resort is the only appropriate sentence in relation to this offence. I have considered whether there was any reason to suspend that sentence or to deal with it by way of periodic detention. I particularly have considered the issue of suspension in relation to your mental health and any efforts you've made towards you (sic) personal rehabilitation but I'm not persuaded that this is sufficient reason to suspend that sentence."

8. It appears to me that the process undertaken by her Honour was an inversion of the appropriate process. Her Honour has, quite rightly in my view, formed the opinion that a sentence of imprisonment was appropriate with respect to this offence. Having formed that view, her Honour should have started with the proposition that the sentence should be served either by way of suspended sentence or by way of periodic detention unless there was some reason why those sentencing options were inappropriate in the particular case.

9. It appears to me, from the portion of her Honour's sentencing comments which I quoted, that her Honour has started with the proposition that once it is determined that a sentence of imprisonment is appropriate, then a sentence of full time imprisonment is to be served unless there is some reason to reduce that to something less. In my view, that reveals error.

10. The appeal will be upheld. The conviction and sentence of four months imprisonment imposed by her Honour will be confirmed.

11. The sentence will be backdated to commence on 22 September 2011 and expire on 21 January 2012. That sentence will be served firstly by way of full time imprisonment between 22 September 2011 and 6 October 2011, and thereafter by way of periodic detention. The first period of periodic detention will commence today, 7 October 2011 at 7.00 pm at the Symonston Periodic Detention Centre and the appellant is to report to the Symonston Periodic Detention Centre today by 7.00 pm.

12. I have backdated it to allow for the period that the appellant has spent in custody. The order of disqualification is also confirmed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the respondent: ACT Director of Public Prosecutions