Scott v Wynants [2009] ACTSC 62

2. Some little time before 7.45 am on Tuesday 9 October 2007, the appellant had been riding a motorcycle, Western Australian registration UG4024, in the vicinity of the intersection of Isabella Drive and Coyne Street in Fadden in the Australian Capital Territory. The intersection was controlled by a roundabout. At the roundabout the motor cycle collided with a Suzuki Station Wagon ACT registration YEI-63B. The motor cycle fell and slid, bursting into flames. The appellant was injured as a result and taken to Canberra Hospital. At 8.55 am, a blood sample was taken. The result of the analysis of it was 0.179 grams of ethyl alcohol per 100 millilitres of blood.

3. The appellant had no memory of the collision. Other witnesses were in conflict as to the manner in which the collision occurred. It was, therefore, not possible to conclude that the appellant was at fault in the collision. The prosecution submitted to Magistrate Burns that it was an aggravating factor that the appellant had a small dog strapped to his chest. It is not clear to me why that should be so and it was not further explained.

4. Of course, the objective facts, level 4 alcohol, a projected journey of 15 kilometres and, statutorily, being a repeat offender, all aggravated the offence. The appellant's plea of guilty was acknowledged.

5. It was further submitted to his Honour that a term of full-time imprisonment was warranted. This was a somewhat ambitious submission. The appellant had a considerable record for traffic offences but only one previous for exceeding the blood alcohol limits (in 2004 at Port Pirie).

6. In mitigation, the appellant's counsel pointed to the appellant's history of brain injury and efforts at drug and alcohol rehabilitation.

7. His Honour, in sentencing, remarked primarily on other matters which were heard concurrently, being serious offences under the Prostitution Act 1992 (ACT) (the Prostitution Act). The comment on the penalty for this offence was:

On 9 October last year [2007] he committed a level 4 drink driving offence as a repeat offender. The reading on that occasion was 0.179 grams of alcohol per 100 millilitres of blood. That offence carries a maximum penalty of a fine of $2000 or 12 months imprisonment or both, together with an automatic loss of licence for a period of 5 years, although that can be reduced to not less than 12 months if there is good reason to do so.

8. There followed extensive comments and reasons relating to the penalties his Honour then imposed for the Prostitution Act offences. The net result was that, for those offences, the appellant was sentenced to two months and 14 days imprisonment and a good behaviour order.

9. The good behaviour order was concurrently imposed for those offences and this offence.

10. The only additional comment relevant to this matter was:

... you will also be disqualified from holding or obtaining a licence for a period of 4 years.

11. No reasons were articulated for choosing that period of disqualification. The appellant contends that the sentence is excessive in the sense that the period of disqualification is excessive. The respondent, by his cross-appeal, contends that the penalty was inadequate. The submission is that the good behaviour order as the only other penalty than conviction and disqualification was too lenient and that a custodial sentence should have been imposed in addition to those penalties.

12. The respondent referred to two relevant previous decisions. First was that of Hammond v RTA [2006] ACTSC 125. That was an appeal from the refusal of a special licence. The penalty that had been imposed for a very high range s 19 offence, being a repeat offender, had been a period of community service and a two year licence suspension. The reading was 0.235.

13. The appellant attracted the provisions of s 33 of the RT (A & D) Act. For a repeat offender, not a special driver (a "special driver" is subject to a .02 limit), for a level 4 reading the "default disqualification" is five years and the minimum disqualification 12 months. Under s 19 RT (A & D) Act, table 32, the default licence disqualification, even for a person not a repeat offender, is three years with a minimum period of six months.

14. 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. That is consistent with the outcome of the matter noted by Connolly J in Hammond (supra).

15. I was also referred to a guideline judgment of the New South Wales Court of Criminal Appeal (Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; 61 NSWLR 305 (2004) for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305). ("Guidelines for High Range PCA").

16. The Court consisted of Spigelman CJ, Wood CJ at CL, Grove, Dunford and Howie JJ. The judgment of the Court was delivered by Howie J.

17. The penalties for a high range offender are, though consistent to an extent, different in New South Wales. Section 9(4), for example, prescribes for a high range first offender a maximum penalty of a fine of $3,300 and/or imprisonment for 18 months. For a repeat offender the fine rises to $5,500 and imprisonment to two years. In this jurisdiction the first offender attracts a maximum fine of $1500 and/or nine months imprisonment. For a repeat offender the fine is $2000 and imprisonment for 12 months (s 26 RT (A & D) Act).

18. The purposes of sentencing under s 3A of the Crimes Sentencing Procedure Act 1999 (NSW) are replicated under s 7 of the Crimes (Sentencing) Act 2005 (ACT). Deterrence, both personal and general, is an important factor.

19. Howie J also pointed to the consideration that it is primarily for the legislature to select the sentencing regime that best addresses the social evil of drink-driving offences. It is not for the courts to subvert the will of the legislature by inappropriately ameliorating the penalties it has chosen. Those penalties, in the case of high range PCA offences where the offender is dealt with for a second or subsequent offence are at the highest level under the road traffic legislation. Further, as his Honour observed (at 330 [101]):

It is a matter of common knowledge that at the level of intoxication represented by a reading of 0.15 the person must have consumed a quantity of alcohol that would not only manifestly influence his or her driving skills but have led the person to appreciate that factor or, at least the risk of it.

20. Factors which will aggravate the moral culpability of the driver and the objective seriousness of the conduct are, unsurprisingly, as his Honour noted at 331 [107]:

• Degree of intoxication
• Erratic or aggressive driving
• Competitive driving or showing off
• Length of the journey at which others are exposed to risk ...
• Number of persons put at risk by the driving.

21. In this case the appellant was not as intoxicated as was the appellant in Hammond. The other factors were not out of the ordinary run of case save, I suppose, that a motor cycle will not usually put passengers at risk as may be the case with a motor car.

22. One issue can be put to rest. It was argued in the High Range Guideline case that licence disqualification was not a penalty but "protective".

23. At that time reasons were not yet delivered in Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129. Those reasons support the conclusion expressed by Howie J that licence disqualification is part of the sentence to be imposed and must be taken into account as such.

24. His Honour also observed that the automatic or default period of disqualification seemed routinely to be reduced and commented (at 336 [127]):

There should be sufficient and appropriate reasons for reducing the automatic period that are capable of being expressed by the court before such a step is taken. Those reasons should take into account the scheme of the Act and the significance of Parliament's view that the automatic period is the period of disqualification to apply in the usual case.

25. A view that the period of disqualification is too long and tempts offenders to drive in defiance of the disqualification, his Honour observed, is a matter for the legislature not the courts to address. In New South Wales the disqualification periods prescribed by s 188 of the Road Transport (General) Act 2005 (NSW) were three years automatic disqualification (reducible to 12 months) and five years for a repeat offender (reducible to two years).

26. The ordinary case, his Honour considered, will involve driving rather than merely being in the driver's seat. There will usually be a real risk to other persons or property as indeed there was in this case. The level of risk will affect the seriousness of the particular offence. The length of journey will be relevant to that assessment as the prosecutor in this case correctly submitted. The reason for the driving will be relevant to culpability but will, in the usual case, be a less than persuasive reason. Loss of licence for a high range PCA will only rarely be inappropriate. That result could only follow upon a non-conviction order.

27. In affirming guidelines for high range PCA offences, his Honour, in considering a second or subsequent high range offender observed that in such a case, discharge with a non-conviction order would only very rarely be appropriate. I was particularly referred to his Honour's observation at 340 [146].

Where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.

28. However, it should be noted that, whilst the appellant is a repeat offender, the only details of the prior offence were that he was for that and the offence of overtaking unsafely was fined $600 and disqualified from driving from 24 September 2004 for seven months.

29. It cannot be concluded that that prior offence was a high range PCA.

30. Thus the "usual" guideline would be applicable. So far as relevant to disqualification that is (at 340 [146]):

The automatic disqualification period will be appropriate unless there is good reason to reduce the period of disqualification.

31. From the guideline judgment it can be concluded that the respondent's contention that a gaol sentence was appropriate as a general rule cannot be supported. Indeed unless the first offence had been a high range PCA even community service would be unusual for a second offence.

32. Nor can the appellant's contention that the period of disqualification was "4/5ths of the maximum" and, hence, excessive be supported. Five years is the default period. There is no maximum. The default period is, in effect, the usual period unless there is good reason to vary it up or down though not below the minimum of 12 months.

33. It has, clearly enough, been common for the default period to be reduced, usually, to between 18 months and two years. The survey does not, of course, address the question as to the criteria adopted for such reductions. No doubt the usual criteria for the imposition of a sentence would be relevant.

34. In the present case, in favour of the appellant, he was found towards the lower level of the high range, he did suffer injury and property loss but the circumstances in which he came to be riding his motor cycle whilst intoxicated were not addressed. Nor was the question of special hardship if the default period was not reduced addressed. The appellant's prior offence, though within five years, had been four years before. Clearly the closer together the prior matter or matters the more punitive the response that would be warranted.

35. In the result, it seems to me that there is apparent error in not imposing some penalty, probably a fine, over and above the good behaviour order which, in any event, was applied to the Prostitution Act offences. Further, whilst recognising that New South Wales guideline judgments are not binding on Territory courts, much of the reasoning is applicable to a proper approach to the common legislative scheme. In particular, it seems to me that it is appropriate to require relevant reasons to reduce or, indeed, increase the default period of licence disqualification, though I acknowledge that reduction would be more usual than increase. It is also apparent that the usual sentencing considerations for imposing a lesser or greater level of penalty than the norm will be relevant.

36. The result is that I uphold both the appeal and the cross-appeal and will hear the parties on the penalty to be substituted.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Counsel for the Appellant/Cross Respondent: Mr K Archer

Solicitor for the Appellant/Cross Respondent: Legal Aid Office (ACT)

Counsel for the Respondent/Cross Appellant: Ms Mackenzie

Solicitor for the Respondent/Cross Appellant: Director of Public Prosecutions