Sheather v Bishop [2012] ACTSC 77

2. On 29 September 2011, Gregory Joseph Sheather decided, unwisely, that he would drive his motor vehicle even though he had earlier been drinking alcohol.

3. It was possibly fortunate for members of the public that he was intercepted by police and subjected to breath analysis in accordance with the procedures set out in the Road Traffic (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act). The result of that analysis was that he was, under the Act, found to have 0.139 grams of alcohol in 210 litres of breath. He was also charged with another traffic offence which is not relevant to the appeal.

4. He was charged with an offence under s 19 of that Act and appeared in the Magistrates Court on 30 November 2011 when he entered a plea of guilty. The matter was adjourned to 8 December 2011 for sentence.

5. On that day, after some documents were tendered and submissions were made as to sentence, the learned Chief Magistrate imposed a sentence for the offence. Her Honour fined him $550 and ordered him to pay court costs of $67 and a contribution to the Criminal Injuries Compensation Fund of $50. She also disqualified him from holding or obtaining a driver licence for 27 months.

6. On 23 December 2011, Mr Sheather appealed to this Court against sentence. The only part of the sentence about which he complained was the length of the licence disqualification.

7. On 26 April 2012, I upheld the appeal, set aside the licence disqualification and in lieu ordered that Mr Sheather be disqualified from holding or obtaining a licence for 10 months. I said at the time I would publish my reasons later. These are those reasons.

8. This court has power under pt 3.10 of the Magistrates Court Act 1930 (ACT) to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal.

9. In that division, s 208 of the Magistrates Court Act sets out the decisions of that Court from which an appeal may be taken. In Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1, I held that where the sentencing court has reduced the period of automatic driver licence disqualification, a challenge to that period of disqualification is an appellable decision. Travini v Starczewski has not itself been appealed and has been followed a number of times. The respondent did not challenge the appellant's assertion that I had jurisdiction.

10. As to such appeals, I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles to be applied. I apply them in this case as follows.

11. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might 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, and that I am not merely tinkering.

12. 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. 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.

13. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

14. At the sentence hearing, the prosecutor read out the facts, to which no objection was taken by Mr Sheather. These showed that at about 9.30 pm on 29 September 2011, Mr Sheather was driving his car, towing a trailer, in Wanniassa, when he was stopped by police. No explanation was given as to why police stopped him. In particular, no inference could be drawn about his manner of driving. Under s 8 of the Alcohol and Drugs Act, police may require a person who is the driver of a motor vehicle on a public street to undergo an alcohol screening test.

15. Mr Sheather produced his driver licence to police, who did require him to undergo a screening test under the Alcohol and Drugs Act. The test proved positive and he was taken into custody to the Tuggeranong Police Station where he was subjected to breath analysis. The result of that analysis was 0.139 grams of alcohol in 210 litres of breath.

16. Mr Sheather was issued with an immediate suspension notice under s 61B of the Road Transport (General) Act 1999. That section obliges a police officer to issue such a notice if the officer believes on reasonable grounds that a person has committed an offence under s 19 of the Alcohol and Drugs Act where the reading is or exceeds 0.1 grams of alcohol per 210 litres of breath. The effect of the notice is to suspend immediately the driver licence of persons to whom the notice is issued and prohibit them from driving a vehicle.

17. The police officer formed the opinion that Mr Sheather was "well under the influence of alcohol".

18. Mr A Fraser, who appeared for Mr Sheather, told the Court that Mr Sheather, who was then aged 41, is a leading hand in a construction company and, as such, is responsible for other sub-contractors in the business.

19. He said that Mr Sheather had not eaten lunch or dinner on the day of the offence and had consumed six or seven beers over several hours. He was obviously mistaken about the effect of the alcohol he had drunk.

20. Mr Sheather had, he said, a stable family situation. He is the father of one boy and stepfather to three other boys. All the boys play rugby league and Mr Sheather attends all of their matches and gets to their training as often as he can.

21. A copy of Mr Sheather's criminal record was tendered. It showed a number of offences of violence, though the most recent was over five years before this offence. His only traffic offence was a drink-driving offence committed in July 2000. The reading was nearly identical to the reading on this occasion. Mr Sheather had held a licence for twenty-five years.

22. A number of references were tendered. Some did not disclose that they were aware of the offences for which Mr Sheather was to be sentenced. This is regrettable as it reduces considerably the value of a reference. Mr Fraser, however, advised the Court that all the authors were aware of the offence.

23. The referees had all known Mr Sheather for more than five years, most of them for considerably longer, including two who had known him for all his life. They described him as a dependable and trustworthy worker in the building industry, displaying a high degree of professionalism and expertise both in building procedures and dealing with co-workers and clients. He is, it was said, "a very sought after carpenter". He was described as very honest and loyal. He was said to be reliable, hardworking, highly motivated and intelligent with a strong work ethic.

24. One referee referred to the remorse Mr Sheather had expressed, saying he was "shattered by the incident" and would be unlikely to reoffend.

25. He was described as a loving father and had been able to "stand up and be counted" in taking on full custody of his son and the sons of his partner. His job in providing a home for his partner and the four boys was described as "amazing".

26. He was said to have given up drinking alcohol as a result of the offence. He was also said to be likely to suffer hardship in his employment because of the inevitable loss of licence as well as the difficulties it would make for the support he supplies to his children in transporting them to school and to sporting fixtures.

27. A document was also tendered showing details of an alcohol and drug awareness program conducted by Karralika Programs Inc, into which he was said to have enrolled, which would commence on 10 January 2012.

28. Mr Fraser, in submissions, further referred to the impact of the licence, noting that Mr Sheather, being the main organiser of the business, travels from site to site. He noted that Mr Sheather had been able to arrange for some assistance, but that the immediate suspension was already causing problems for the business. The arrangements he had put in place were not able to be continued for much longer. His eldest son, however, had a provisional licence.

29. The learned Chief Magistrate gave short but succinct reasons for sentence. Her Honour referred to the penalties, namely a maximum of 10 penalty units (a fine of

$1 100), or imprisonment for six months or both, and the automatic disqualification of Mr Sheather's driver licence for three years reducible to not less than six months. Her Honour noted that the breath analysis was "quite a high reading" for a Level 3 offence. Her Honour also noted that the amount of alcohol Mr Sheather had consumed should have alerted him to the fact that he was likely to be so affected as to have the prescribed concentration of alcohol.

Your early guilty plea is recognised and I have afforded a 25 per cent discount on the financial and disqualification periods that I would have otherwise imposed.

31. Her Honour referred to Mr Sheather's reputation, that he was well-regarded, but pointed out that the offence was often committed by such people. Her Honour also referred to the dangerousness of such driving.

32. Her Honour referred to the impact of the inevitable loss of licence as follows:

I note of course that there will be an impact upon your family and upon your work as a result of any disqualification that I am to impose. Sadly, that is also usually the case, particularly in Canberra where our public transport is not ideal and particularly for people involved in trades work, which involves removing or moving large amounts of equipment and moving from site to site. Unfortunately, you are going to have to make some arrangements to deal with that fact.

33. Her Honour then proceeded to sentence Mr Sheather in the following terms:

You are convicted. You are disqualified from holding or obtaining a driving license for 27 months. The period of your suspension will be taken into account in respect to that disqualification. You will be fined $550 and required to pay a contribution to the Criminal Injuries Compensation Fund of $50 and court costs of $67, which totals $667.

34. On 23 December 2011, Mr Sheather appealed against the sentence imposed. The ground of the appeal was that the sentence was manifestly excessive.

35. An application was made for the admission of further evidence which was set out in an affidavit of Mr Sheather's lawyer. The respondent consented to the admission of this evidence and, accordingly, I admitted it under s 214(3)(b) of the Magistrates Court Act.

36. It showed that Mr Sheather had successfully completed the program in which he had enrolled, the Reversed program, described as an "alcohol and drug awareness course for mid to high range and repeat offenders approved by the Road Transport Authority."

37. I received detailed, comprehensive and helpful submissions from Mr M Kukulies-Smith, Mr Sheather's counsel. These made clear that the challenge on appeal was to the length of the disqualification period imposed by her Honour.

38. The submissions noted that the reading was a little above the mid range of Level 3, which, under s 4E of the Alcohol and Drugs Act, is between 0.08 grams of alcohol in 210 litres of breath to 0.15 grams of alcohol in 210 litres of breath. They further noted that the absence of the aggravating features that had been identified in Scott v Wynants (2009) 4 ACTLR 13 at 17; [20].

39. The submissions further noted that Mr Sheather was the only person in the vehicle and that the time and place of driving (9.30 pm on a Thursday night in a suburban street) meant that the traffic was likely to be light and that pedestrians were unlikely to be there. There was no evidence to the contrary.

40. The plea of guilty was entered at the earliest opportunity; it was submitted the subjective circumstances of Mr Sheather were very positive; his references showed positive good character in the sense described in Goundar v Goddard [2010] ACTSC 56; (2009) 240 FLR 176 at 184; [45]-[47].

41. It was also noted that, contrary to the statement of her Honour (at [33] above) that she would take into account the period of suspension, she had not done so. It was also noted that in Shires v Edwards [2011] ACTSC 132 at [82], I had noted that the fact that a licence is needed for employment is a relevant factor in determining the length of a disqualification period.

42. I have analysed the issues surrounding the question of whether a court should reduce the automatic period of disqualification of a driver licence, under s 33 of the Alcohol and Drugs Act, in Newham v Cogle [2012] ACTSC 76 at [39]-[42]. I do not need to repeat the analysis and I apply it.

43. It seems to me that the Learned Chief Magistrate made two errors in the reduction of the disqualification period as part of the sentence here. In the first place, she treated the automatic period as either a maximum or a tariff. It is neither, as I have noted in Newham v Cogle at [45]. In the second place, she did not seem to allow for the period of suspension that Mr Sheather had had imposed on him prior to sentence, though she said she did.

44. Her Honour referred to a "discount" of 25 percent on the disqualification period. That reduces the automatic period of disqualification of three years to twenty-eight months. Her Honour said she had "taken into account" the period of suspension, namely two months and a few days. Her Honour did not explain why she had only made an allowance of only one month for this period.

46. It is, therefore, necessary to consider whether to reduce the period of disqualification and, if so, to what period I should reduce it.

47. It seems to me that the hardship to Mr Sheather and his employment that will be suffered by his loss of licence is a sufficient and appropriate reason to reduce the period of disqualification. I need, then, to consider the relevant factors, both as to penalty and protection of the community to arrive at an appropriate period.

(i) the level of the reading, above the mid range for Level 3;

(ii) the prior offences, principally, and in this case perhaps only, the earlier drink-driving offence, though committed more than eleven years ago;

(iii) the fact that there was no manner of driving that appears to have drawn Mr Sheather to the attention of police and no evidence of other road users put at risk;

(iv) the significant reliance on his licence for his employment;

(v) the period of two months and nine days of immediate suspension which, as was said in Police v Waller [2011] SASC 232 at [13], can be taken into account, though I consider in the circumstances, that it should be rounded down to two months in this case;

(vi) his plea of guilty at the earliest opportunity;

49. In all the circumstances, I considered a period of twelve months was a sufficient penalty to penalise Mr Sheather to protect the community, but reduced by two months to allow for the immediate suspension.

51. Those orders may, it appears, have been too generous to Mr Sheather and the declaration I then made may be wrong.

52. As noted above (at [49]), I reduced the period of Mr Sheather's disqualification that I would otherwise have ordered by the period when he was subject to an immediate suspension notice, rounded down to two months. This seemed to me fair and in accordance with principle as noted in Police v Waller.

53. Neither counsel, however, drew my attention to s 35(2) of the Alcohol and Drugs Act, which relevantly provides:

The period for which the person is disqualified under this part from holding or obtaining a driver licence (including any period of minimum disqualification under section 32 or section 33) is reduced by the period that the person's driver licence was suspended under the Road Transport (General) Act 1999, section 61B.

1"> 54. This clearly gives legislative effect to the principle to which I referred and, of course, is fair.

55. Having, however, reduced Mr Sheather's disqualification by the two months, the statutory further reduction effected by s 35(2) seems automatically to apply to reduce it again. That, of course, would render the declaration I made inaccurate.

56. It may be that the declaration is contrary to law under s 61(1)(a) of the Crimes (Sentencing) Act 2005 (ACT), though it does not seem to me that such a declaration is a sentence-related order for the purposes of the section. As a declaration, it would seem otherwise to be a final order and so not able to be set aside or varied: International General Electric Company of New York Ltd v Commissioners of Customs and Excise [1962] 1 Ch 784 at 789.

57. I shall leave it to the parties if they wish to address this issue in any way.

I certify that the preceding fifty seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: ACT Director of Public Prosecutions