Senderowski v Mothersole [2013] ACTSC 217

2. On 8 December 2011 Mr Senderowski was convicted and sentenced to imprisonment for six months, to be served in full-time custody from that date. He was also disqualified from holding or obtaining a driver's licence for four years, that period to begin after the end of the disqualification that had been ordered on an earlier charge and was to expire on 19 December 2011.

3. On 29 December 2011, Mr Senderowski filed a notice of appeal that he had prepared himself, which specified "severity of sentence" as his ground of appeal, noting also that the sentence was too harsh and that he would have preferred weekend detention.

4. The appeal was listed for hearing on 15 March 2012, but the Court Registry received an informal indication on behalf of Mr Senderowski that he wished to withdraw his appeal, and it seems that the listed hearing was removed from the court lists.

5. In February 2013, after Mr Senderowski acquired a new solicitor, the appeal came before the Deputy Registrar and in due course it was docketed to me.

6. Despite the indication of a wish to withdraw the appeal, no formal notice of withdrawal was ever filed, and it was unclear whether the earlier indication about withdrawal in fact applied only to Mr Senderowski's prison term, which by then had been substantially served. In these circumstances, and having regard also to Mr Senderowski's poor English, I was not willing to find that the appeal had been effectively withdrawn.

7. Accordingly, in July this year I listed the appeal for hearing and made orders for the filing and serving of an amended notice of appeal and written submissions. This hearing date had to be vacated because of issues about Mr Senderowski's capacity to fund the appeal, and the matter finally came on for hearing on 15 August this year.

8. The hearing was then adjourned part-heard to enable Mr Senderowski to produce proper evidence of the impact of a loss of licence on his relatively new employment.

9. That information, a letter from his current employer, Canberra Comprehensive Car Care Centre in Fyshwick, attached Mr Senderowski's employment plan, which certainly indicates that he works in different locations around Canberra. The letter noted that he has to attend various sites in a day, needs a vehicle to do his work, and will lose his job if he loses his licence.

10. The current charge arose when Mr Senderowski was stopped by police around 3.40 pm on 5 October 2011 in the suburb of Amaroo, apparently as a result of a report of erratic driving. Police could smell alcohol on his breath and his appearance and behaviour indicated that he was very intoxicated. A breath test produced a Level 4 reading of 0.223. As well, it emerged that Mr Senderowski had been disqualified from driving since July that year.

11. Mr Senderowski's explanation, although apparently only produced in court, was that he had been at a family funeral after which he had had some alcohol to calm his emotions, but no food.

12. Mr Senderowski was, as noted, a repeat offender. He has drink driving convictions from 1990, 1992 and 2011, as well as for refusing or failing to provide a breath sample in 2005. The 2011 offence, which also involved a Level 4 reading, although a lower one, only 0.166, was committed less than four months before the current offence.

13. Mr Senderowski came to Australia from Poland when he was 14. He has limited education, and has had employment in a variety of relatively unskilled jobs and also periods of unemployment, some but not all relating to his previous losses of his licence. It seems he began to drink alcohol when he was about 10 years old.

14. In the Magistrates Court Mr Senderowski claimed to be a moderate drinker mostly, but said that he had been drinking a lot around the time of the offence because alcohol was cheaper than food.

15. Mr Senderowski also claimed to suffer constant pain due to degenerative damage to his pelvis, hips, shoulder and knees, but the material he produced in support of this claim suggests that he has had no medical attention for these problems since 2004.

16. As noted, the sentencing Magistrate imposed a prison term of six months and a four year licence disqualification, to start on 19 December 2011 at the end of the previous licence disqualification.

17. Counsel noted that the appeal was not pursued in relation to the prison term, which had in any case been served. He identified two errors that he said affected the Magistrate's imposition of a four year licence disqualification period on Mr Senderowski.

18. First, counsel said, the sentence was manifestly excessive. It is true that this court appears to have identified a sentencing range for repeat offenders with blood alcohol at Level 3 and Level 4 in the order of 18 to 24 months disqualification, with those whose previous offences were more recent generally receiving sentences at the higher end of that range, while the circumstances of Mr Senderowski's offence and his poor previous record, including a very recent previous Level 4 offence, would put him at or above the top of that range. I am satisfied that the four year disqualification was manifestly excessive. See Piper v Hall [2013] ACTSC 207; Mwauluka v Turkich [2013] ACTSC 1 and cases cited therein.

19. Secondly, counsel said that her Honour the sentencing Magistrate had fallen into what he called the Newham v Cogle error identified by Refshauge J in the case of that name, Newham v Cogle [2012] ACTSC 76, as follows:

15. It seems to me that her Honour also appeared to approach the automatic disqualification period incorrectly. It is neither a tariff (that is, a sentence standard: R v Sumner [2007] SASC 376 at [78]) nor a maximum (Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]). The default period can be reduced, to a statutory minimum, for "sufficient and appropriate reason": Guideline Judgment at 336; [127]. It is inevitable that there will be hardship, but it must be proportionate to the offence and the penalty for it and the need to protect the community. It can take into account various factors, including the nature of the offender's employment, the absence of viable alternative transport and sickness or infirmity of the offender or another: Guideline Judgment at 340; [146]. As an example, see R v Bennett at [26].

20. As to the disqualification period her Honour, the sentencing magistrate, said:

...the default disqualification is five years, I have reduced that to four years, in the circumstances.

21. This appears to be an error of the kind identified by Refshauge J.

22. The finding of two errors means that I am able to consider re-sentencing, and my finding that the disqualification period was manifestly excessive indicates that another period of disqualification would be appropriate.

23. For the purpose of re-sentencing, I note first that it is agreed between the parties that I should give Mr Senderowski credit for a period of exactly 12 months during which he did not drive, from the day his licence disqualification took effect during his prison term on 19 December 2011 until 18 December 2012 when, after receiving relevant advice from his solicitor about the effect of his appeal on his licence disqualification, Mr Senderowski obtained a new driver's licence.

24. Next, I note the letter from Mr Senderowski's employer that I have already mentioned. This is, in my view, a sufficient reason to depart from the default disqualification period and set a disqualification period by reference to relevant objective and subjective circumstances.

25. It is unfortunate that Mr Senderowski seems to have a limited range of employment options available to him and that many of these require him to have a driver's licence. However, the seriousness of his offence, involving a very high Level 4 reading; noticeably erratic driving on a day and at a time that, but for the fact that it was the school holidays, would have been quite a busy time on suburban roads; and the fact of his repeated offending and the recency of his previous offending, means that there is simply no scope for treating his abstention from driving so far as an adequate disqualification period.

26. The new disqualification period will be such as to provide a total disqualification of 24 months, although if not for the prison term that Mr Senderowski has also served I would have set it at 27 months.

27. Because I cannot backdate the disqualification period, the period I will in fact impose is a disqualification for 12 months, starting today and ending on 9 September 2014.

28. Accordingly, the appeal will be upheld to the extent necessary to set aside the disqualification period of four years imposed in respect of the Level 4 PCA offence and, while noting 12 months abstention from driving after the original sentence, I impose a new sentence of 12 months disqualification starting today.

29. The term of imprisonment, and the 12 months concurrent disqualification on the drive while disqualified offence are confirmed, but have already been served.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.