TRAFFIC LAW - licensing of drivers - disqualification of licence - effect of appeal.

TRAFFIC LAW - licensing of drivers - disqualification of licence - principles applicable to determination of period of disqualification.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4E, 7, 19, 26, 32, 41

Legislation Act 2001 (ACT)), s 133

Magistrates Court Act 1930 (ACT), ss 209, 216, Div 3.10.2

Crimes (Sentencing) Act 2005 (ACT), s 33

R v Eisenach [2011] ACTCA 2

House v The King [1936] HCA 40; (1936) 55 CLR 499

Hammond v Road Transport Authority and Anor [2006] ACTSC 125

Morris v East (1988) 83 ACTR 1

Kennewell v Rand [2006] ACTCA 10

Hughes v Grieve [2006] ACTSC 92

Scott v Wynants [2009] ACTSC 62

McGregor v Maguire [2008] ACTSC 7

Reynders v Wynants [2008] ACTSC 143

Barac v Thexton [2008] ACTSC 137

Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedure) Act 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

Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1

R v Campbell [2010] ACTCA 20

R v Bloomfield (1998) 44 NSWLR 734

Heine v The Queen [2008] NSWCCA 61

R v So [2004] NSWCCA 362

Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appellant have leave to amend the Notice of Appeal by adding a ground of appeal as follows:

(e) the Learned Magistrate erred in taking into account an irrelevant consideration, namely that the appellant did not need his licence for his employment.

3. The order of the Magistrates Court that the period during which Samuel James Shires is disqualified from holding a driver's licence be reduced to two years is set aside.

4. In lieu, the period during which Samuel James Shires is disqualified from holding a driver's licence is reduced to nine months which expired on 13 October 2009.

5. The conviction and other orders of the Magistrates Court on 14 January 2009 are confirmed.

1. Drink driving is a serious safety issue on the roads of the Territory, but, like all offences, such a description does not justify any particular severity of sentence. A sentence must be proportionate to the offence and to the circumstances of the offender.

2. Thus, the appellant, Samuel Shires, has appealed against part of the sentence imposed the Magistrates Court for an offence under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act), namely that, on 1 November 2008 he, as a first offender, drove a motor vehicle on a public street with Level 4 alcohol in his blood.

3. Mr Shires appeals against the length of the licence disqualification his Honour imposed, effected by his Honour reducing the period of disqualification from the statutory default period, as permitted by s 32 of the Alcohol and Drugs Act.

4. Section 19(1) of the Alcohol and Drugs Act makes it an offence to drive a motor vehicle on a public street with more than the prescribed concentration of alcohol in the driver's blood. Other provisions then regulate the consequences of a conviction for the offences.

5. Under s 4E, the prescribed concentration of alcohol in a person's blood or breath is divided into four levels set out in Table 4E. Level 4, the highest level, is a concentration of 15 grams or more alcohol in 100 millilitres of blood. Under s 26 of the Alcohol and Drugs Act, there are different penalties by reference to the level of concentration of alcohol in the person's blood and by reference to whether the offender is a first offender or repeat offender. For level 4, the maximum penalty for a first offender was, at the time of the offence, fifteen penalty units (a $1500 fine, see s 133 of the Legislation Act 2001 (ACT)), imprisonment for nine months or both.

6. Under s 32 of the Alcohol and Drugs Act, a person is automatically disqualified from driving upon conviction; in the case of a first offender, who is not a special driver, the disqualification period imposed by the Act for an offence involving a Level 4 blood alcohol concentration is three years, but the court may reduce it to not less than a minimum period of six months. The section provides that the period is the three years unless the court orders a shorter period of disqualification but, of course, it cannot be less than the minimum period.

7. Section 19(4) of the Alcohol and Drugs Act provides that the evidence of the concentration of alcohol in a person's blood may be given by the results of an analysis of a sample of the person's breath carried out in accordance with the Act. I do not need to detail these procedures for this appeal. I note that s 41 provides for an evidentiary certificate, the tender of which is the usual method of proving the relevant concentration.

8. While no certificate was tendered in this case, the statement of facts asserted that the result of the analysis was 0.177 grams of alcohol per 100 millilitres of blood. A plea of guilty was entered to that statement of facts, admitting each of the essential elements of the offence. See Maxwell v The Queen (1996) 184 CLR 501 (at 510) per Dawson and McHugh JJ. That alleged concentration was one such essential element.

9. Police on mobile patrol in Ashley Drive, Wanniassa, ACT at 1.15 am on 1 November 2008, saw a vehicle being driven in an unsafe manner. It was travelling over marked lanes and not maintaining a constant speed. The police officers intercepted the vehicle and spoke to the driver, who was the appellant. They subjected him to a roadside screening test (see: s 7 of the Alcohol and Drugs Act) and it indicated a positive result.

10. The police took the appellant into custody and escorted him to Tuggeranong Police Station where he was required to provide a sample of his breath for breath analysis. At 2.00 am he provided the sample and, as noted above (at [8]), the results of the analysis showed he had 0.177 grams of alcohol in 100 millilitres of his blood.

11. Police observed that the appellant was polite and co-operative with police and, though he showed clear effects of intoxication, he was assessed by the police as being slightly affected by intoxicating liquor.

12. The appellant was twenty years old at the time of the offence and at the time of sentence lived at home with his parents and younger siblings. His mother attended court and provided a reference.

13. He was schooled in Canberra, leaving at Year 12 and obtaining a job in the Commonwealth Public Service. He was said to have performed well, gaining promotion from casual employment to, at the date of sentence, a full-time position at level 4.

14. On 31 October 2008, he had been at the Goulburn races with his uncle, for whom he had been acting as a strapper. This is a hobby of the appellant and he receives no remuneration for the work. He had, as a result of being with the horses all day, consumed no food. When he returned to Canberra, he went out with some friends and clearly consumed a large amount of alcohol during the evening.

15. He did not drive to or from the venues where he drank, but was given lifts by friends, as is his usual practice. When he returned home, he then decided, for some reason, which he described both to his counsel and to his mother as "completely stupid", that it would be a good time to get a pie and, instead of walking what was said to be about a kilometre to the service station where he was going to complete his purchase, he, no doubt disinhibited by the alcohol, decided to drive his brother's car which had been parked outside the family home.

16. It was said that he ordinarily made arrangements for others to drive him or to use taxis if he was going to consume alcohol or be intoxicated. He had no prior convictions and, at the time of the offence, had held a driver's licence for just over three years.

17. References from the appellant's mother and uncle were tendered.

18. His mother recounted how apologetic, remorseful and distressed he was and how he recognised that he had been "stupid". She had discussed the incident with him and reported that he understood the risk he had been to others. That seems to me to show insight, an important element in assessing his subjective circumstances. She described him as a "dutiful, caring son of whom I am very proud". She recounted his sense of responsibility, care and conscientiousness at school and his usual compliance with protocols. She noted that he accepted full responsibility for his actions, knowing how careless they were. Accepting responsibility and being accountable are also important elements in assessing subjective circumstances for sentencing.

19. His uncle confirmed how responsible the appellant was and how trustworthy he found him. He described the appellant's behaviour as out of character, also an important factor in sentencing. He confirmed the appellant's remorse. He felt confident that there would be no repetition.

20. The learned Sentencing Magistrate imposed a fine of $600 (with $61 court costs and $10 victim's levy) and reduced the licence disqualification period from three years to two years.

... I'll take into account the fact that you are 20 years of age, you entered an early plea of guilty with respect to the matter and you have no previous convictions recorded against you and that you've been driving for, perhaps, in excess of three years.

Of course on the debit side of the ledger is the fact that you have a very high reading involved and I will also, of course, take into account the fact that you have no real need for a driver's licence in respect of your employment.

The maximum penalty for this offence with a level 4 reading is a fine of $1,500 together with an automatic loss of licence for a period of three years, although I can reduce that to not less than six months. You'll be convicted and fined $600 with $61 costs and $10 victim's levy. Bearing in mind the fact that you have no previous convictions recorded against you and that you entered an early plea of guilty, I'll reduce the automatic disqualification of three years and you'll be disqualified from holding or obtaining a licence for a period of two years.

22. Appeals against sentencing decisions of the Magistrates Court are regulated by Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act).

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

24. The sentences imposed in the Magistrates Court are not to be set aside on appeal simply because, as the appellate court, I conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a suitable sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion of 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.

25. 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 re-impose 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.

26. Under s 216 of the Magistrates Court Act, the institution of an appeal stays the execution of the sentence on which the appeal has been taken and, accordingly, this needs to be addressed when the appeal is decided.

27. There is some uncertainty about the effect of s 216 of the Magistrates Court Act on the licence disqualification. I deal with that below.

28. Under s 209(1) of the Magistrates Court Act, an appeal against a sentence imposed in the Magistrates Court must be commenced within twenty-eight days of the date of sentence. Here the sentence was imposed on 14 January 2009 but the appeal not commenced until 6 November 2009.

29. Application was made under s 209 of that Act for an extension of time within which to commence the appeal. On 6 November 2009, Master Harper was satisfied:

(a) that the matter had proceeded at a proper pace since the appellant's current solicitor had taken over conduct of the appeal;

(b) that there was an adequate explanation for delay; and

(c) that there were sufficient prospects of success in the appeal

and extended the time within which the appeal could be brought.

30. A notice of appeal was then filed. It contained the following grounds:

(a) the period of the disqualification is manifestly excessive

(b) the learned Magistrate gave insufficient weight to the plea of guilty

(c) the learned Magistrate gave insufficient weight to the appellant's good character

(d) the learned Magistrate gave excessive weight to the seriousness of the offence.

31. The real ground is, of course, that set out in ground (a) and the others are really particulars of the factors which need to be evaluated in order to assess whether ground (a) has been made out. See R v Eisenach [2011] ACTCA 2 (at [38] to [44]).

32. The appeal did not then seem to proceed expeditiously, but was ultimately listed for hearing on 10 June 2010. Regrettably, pressure of the court's business has led to some unfortunate delay in delivering judgment.

33. Ms T Warwick, who appeared for the appellant, submitted that, having regard to the objective facts and circumstances of the offence, the subjective circumstances of the offender and the general level of disqualification period imposed in the Magistrates Court for such offences, the period of disqualification was too high. She also submitted that when his Honour said "the fact that you have no real need for a driver's licence in respect of your employment", that was a reference to an irrelevant consideration which his Honour should not have taken into account.

34. To take an irrelevant consideration into account is a specific error. See House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 505). That is not subsumed under the general ground of manifest excess. The respondent did not object to the raising of the issue. I shall consider it, but make the appropriate order to ensure the record reflects it.

35. The objective circumstances on which Ms Warwick relied to say it was not a serious example of the offence were:

• the shortness of the projected journey, one kilometre; and

36. The subjective circumstances on which she relied were:

• he entered a guilty plea on the first appearance in court;

• his expressions of remorse to the appellant's mother and uncle;

37. In relation to what may be described as the "tariff", she relied on what had fallen from Higgins CJ in Scott v Wynants (2009) 4 ACTLR 13, a case involving a person charged with a similar offence also with a level 4 reading, though for a repeat offender. His Honour said (at 16; [14], 18; [33]):

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.

...

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.

38. The reference to Hammond was to Hammond v Road Transport Authority and Anor [2006] ACTSC 125, an appeal against a refusal by the Magistrates Court to grant a special licence when the appellant was convicted of a drink driving offence with a Level 4 reading (0.235 grams of alcohol to 100 millilitres of blood).

39. The appellant there had been convicted of five such offences over thirty years, four of them over twenty-two years, one of which was in the blood alcohol range of 0.240 to 0.250. His Honour referred to the sentence which (at [2]), he described as "in the nature of community service and a two year licence suspension". This, his Honour, said (at [3]), was "not appealed, nor should it be, it was entirely within range".

40. Ms Warwick also sought to rely on an affidavit of her instructing solicitor. It deposed to three prosecutions for the same or similar offences in which he had acted for a defendant and summarised the circumstances and sentences in each case. The solicitor also expressed in it an opinion, said to be based on his experience as an advocate in about sixty such cases over the past twelve months, as well as him "watching other PCA proceedings while waiting in the court". The opinion was that in such cases "it is usual for the Magistrates Court to reduce the automatic period of disqualification to a period between 6 months and 12 months".

41. Ms N Werner, who appeared for the prosecution, objected to the affidavit.

42. Not without some hesitation, I permitted Ms Warwick to read the affidavit, save for the paragraphs expressing the deponent's opinion which, on the basis of Morris v East (1988) 83 ACTR 1 (at 9), I rejected.

43. Ms Warwick also referred to a report of what was said to be a similar case in the Magistrates Court published in the Canberra Times as well as seven published decisions of this court, namely: Kennewell v Rand [2006] ACTCA 10; Hughes v Grieve [2006] ACTSC 92; High v Willis (2008) 2 ACTLR 104; Scott v Wynants; McGregor v Maguire [2008] ACTSC 7; Reynders v Wynants [2008] ACTSC 143; and Barac v Thexton [2008] ACTSC 137.

44. Ms Werner also objected to me receiving the newspaper article in which the "similar case" was reported, though I did so.

46. In then addressing the objective seriousness of the offence, Ms Warwick referred to the presence or absence of various factors by reference to the matters identified as particularly relevant to the seriousness of the offence in Scott v Wynants by Higgins CJ (at 17; [20]), namely:

• 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.

47. As to the degree of intoxication, Ms Warwick accepted that the reading was a high reading, as a Level 4 reading, but pointed to the observations of the police officer, who arrested the appellant, recorded in the Statement of Facts as follows:

The defendant was polite and co-operative towards Police at all times. The defendant's face was flushed, his eyes were sleepy, he smelt slightly of intoxicating liquor, his ability to understand instructions was fair, his speech was normal, and his balance was sure. Constable Edwards formed the opinion the defendant was slightly affected by intoxicating liquor.

48. Ms Warwick submitted that the manner of driving was not significantly inappropriate, though described in the Statement of Facts as "travelling in an unsafe manner". The driving was in the early hours of Saturday morning. The driving consisted of "travelling over marked lines, and ... not maintain[ing] a constant speed". The Statement of Facts stated that the traffic was light at that time, though with a risk that any other drivers, of whom there was no actual evidence, might be impaired at that hour by fatigue or alcohol or both.

49. The journey was a short one and there were no passengers in the car. There was no evidence that any persons other than the appellant were put at risk as a result of the driving.

50. There was no suggestion that there was any aggressive driving, competitive driving or showing off. Further, the Statement of Facts described the road as having "a bitumen surface which was dry and in good repair".

51. Ms Warwick also referred to the subjective circumstances of the appellant. He had been driving for three years with no traffic convictions. Indeed, he had no convictions at all. His mother's evidence was that his usual practice was to organise a lift home and, indeed, he had done so earlier that day. He was a young man with a good character. He had a job, family support and a strong interest in his hobby, helping his uncle as a strapper. He expressed remorse and was unlikely to re-offend. He had pleaded guilty at an early stage, indeed on the first day he appeared in court.

52. Ms Warwick submitted that I should follow what Higgins CJ said in Scott v Wynants (at 19; [35]), that, when considering the licence disqualification period "the usual sentencing considerations for imposing a lesser or greater level [of disqualification] than the norm will be relevant".

53. Ms Warwick then referred to the decided cases and to those referred to in the affidavit, noting the disqualification period in these cases was shorter than in this matter.

54. Ms Warwick also referred to the comment of the Learned Sentencing Magistrate that the appellant had "no real need for a driver's licence in respect of your employment" and submitted that this could not be an aggravating factor and should not have been taken into account by the court, apparently "on the debit side".

55. She also referred to the fact that his Honour did not mention the appellant's good character or prospects of rehabilitation, though this must be considered in the light of the fact that it was a busy Magistrates Court, no doubt in a list of many cases, and of an offence which is regrettably only too regularly dealt with there.

56. Ms N Werner, who appeared for the respondent, submitted, both orally and in helpful written submissions, that the period of disqualification could not be seen as excessive.

57. In particular, she referred to the degree of blood alcohol concentration, which was well into the Level 4 range; it was 0.177%, where Level 4 is 0.15% and above. She also referred to the erratic driving, both of which factors elevated the seriousness of the offence.

58. She acknowledged the good character of the appellant and his youth, but noted that it meant he had a relatively short driving record. She acknowledged his plea of guilty, but noted that this must be moderated under s 33(4) of the Crimes (Sentencing) Act 2005 (ACT), because of the inevitably overwhelming prosecution case.

59. She referred particularly to the guideline decision of the NSW Supreme Court, Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedure) Act 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 (the Guideline Judgment).

60. The Guideline Judgment was described by Higgins CJ in Scott v Wynants (at [35]) as "not binding on Territory courts", but his Honour did find that "much of the reasons are applicable to a proper approach."

61. Ms Werner noted that, in the Guideline Judgment, the court observed (at 334), that good character is of "less relevance" because of "the prevalence of the commission of the offence by persons of good character".

62. She submitted that the circumstances of the offence showed that disqualification for the stated period was not manifestly excessive, that the Learned Sentencing Magistrate did not give insufficient weight to the plea of guilty or to the appellant's good character nor give excessive weight to the aggravating factors. Indeed, she commented that the relatively short driving history did not entitle the appellant to any particular leniency.

63. Ms Werner submitted that a reduction of licence disqualification to two years was "not out of the ordinary" in her experience. She submitted that, for young drivers with limited prior experience, a longer period of disqualification was more likely.

64. She submitted that the decisions referred to were not of great assistance, that the offence was prevalent and that the period of disqualification was within range. The reduction was already significant and no more was required to do justice in the case.

65. As I said in Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1 (at 12; [68]), I have jurisdiction in this case to deal with the appeal, even though it only related to the period of the licence disqualification, because the Magistrates Court reduced the period of disqualification.

66. So far as the disqualification period is concerned, I note, as I said in Barac v Thexton (at [56]), that the three year period is not to be regarded as a maximum, as would a sentencing penalty be regarded. Nor is it a compulsory penalty. In Scott v Wynants, however, Higgins CJ referred (at [24]) with apparent approval to what Howie J said in the Guideline Judgment (at 336; [127]), when observing that "courts are too ready to reduce the automatic period and to choose the minimum disqualification period as the alternative", namely:

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.

67. The material in the affidavit of the appellant's solicitor, the reference to the other cases in this court and the Court of Appeal and the newspaper article seemed to be an attempt to address some of the issues referred to by me in Hawkins v Hawkins (2009) 3 ACTLR 210 (at 219; [46] to [47]) and by the Court of Appeal in R v Campbell [2010] ACTCA 20 (at [32] to [35]).

68. Insofar as the newspaper article was concerned, it seemed to me that it was not admissible as evidence but rather a reference to a court case, as a very inadequate attempt to emulate what is provided by, for example, the Times Law Reports.

69. Given that the decisions of Magistrates, especially in such cases, are not reported in law reports, such material as this and the contents of the affidavit may have some, quite limited, value. The best that could be said for it is that it showed that on occasion, Magistrates had reduced the period of disqualification below two years. This was, in any event, accepted by Higgins CJ in Scott v Wynants (at 16; [14]). It seems to me that, indeed, the comment there made that the statistics revealed "a routine reduction ... from five years to between 18 and 12 months" was more helpful than any of the material provided by the appellant.

70. Statistics, of course, have to be treated with care as Spigelman CJ (with whom Sally and Ireland JJ agreed) noted in R v Bloomfield (1998) 44 NSWLR 734 (at 739). See also the comments of Bell JA (as her Honour then was) in Heine v The Queen [2008] NSWCCA 61 (at [34]). As Studdert J (with whom McClellan AJA and James J agreed) said (at [27]) in R v So [2004] NSWCCA 362 in respect of drug cases:

1. Caution has to be exercised in the use of the statistics provided by the Judicial Commission. The statistics here produced do not indicate for instance the amount of the drug involved in the cases used, whether the matter went on appeal as a Crown appeal, and what discounts were allowed for pleas, or indeed for assistance to authorities. Moreover, it has to be recognised that an appropriate sentence can only be reached following a careful assessment of all the features of the particular case.

The reference to "the amount of drug" could have been replaced by "degree of intoxication or blood alcohol reading".

71. In this case, the number of decisions was very small and little can be made of them. As Spigelman CJ said in R v Bloomfield (at 739):

(ii) Statistics may be less useful than surveys of decided cases, which enable some detail of the specific circumstances to be set out for the purposes of comparison.

...

(viii) The larger the sample the more likely the statistics are likely to be useful.

72. Thus, I found the material in the affidavit and the newspaper report of quite limited significance providing no more aid, indeed, less than the findings of Higgins CJ in Scott v Wynants.

73. As to the decided cases to which reference was made, they were in the main unhelpful. It was not clear on what basis they had been chosen. For example,

• Kennewell v Rand related to quite different offences and there was no discussion of the reasons why a particular disqualification period should be imposed;

• Hughes v Grieve also related to a different offence and the licence disqualification regime in the legislation relating to it was quite different; again there was no discussion about the period of disqualification that could possibly be relevant here.

• High v Willis did not refer to licence disqualification in the judgment at all.

• McGregor v Maguire made useful comments about the need for reasons supporting any particular period of disqualification imposed but otherwise the circumstances were different as the appellant was a repeat offender.

• Reynders v Wynants was a very short decision providing no helpful reasons as to why the particular period of disqualification was chosen.

• Barac v Thexton was a special case where particular circumstances led to the result.

74. All in all, the decisions barely added to what had been said in Scott v Wynants as referred to above (at [37]). Certainly there was no jurisprudence that would further assist in the appeal.

75. Further, as Miles CJ said in relation to such offences in Morris v East (at 10):

The Supreme Court is capable of knowing where the limits of a sound discretionary judgment lie where a person is sentenced for this type of offence.

76. As noted above (at [26]) the effect of the lodgement of the Notice of Appeal was to stay the sentence from which the appeal is taken: s 216 of the Magistrates Court Act.

77. This means that the appellant could drive until the appeal is heard. This is, perhaps, a curious result, for the conviction is not challenged on an appeal against sentence. Were the court not to have reduced the disqualification period, then there could be no appeal from that part of the sentence (see Travini v Starczewski) and so the disqualification would have continued unless a stay was sought and granted. Whether that is possible is not a matter on which I have heard submissions so I do not express a view.

78. Even had the appellant decided voluntarily not to drive during the pending of the appeal, it would not be possible on the appeal to reduce the disqualification period below the minimum. See Barac v Thexton.

79. Accordingly, the court on this appeal must reconsider whether the period of disqualification was excessive and, if so, either impose some other period by reducing the default period not less than the minimum period or refusing to reduce the period at all.

80. It does seem to me, however, that when considering this, the period between the imposition of the sentence and the filing of the Notice of Appeal is to be taken into account so that the total period of disqualification is not exceeded by virtue of that period.

81. It seems to me that the Learned Sentencing Magistrate did make an error in taking into account the fact that the appellant did not need his licence for his employment as, apparently an aggravating factor, "on the debit side".

82. The fact that a licence is needed for employment is clearly a factor to be taken into account and may provide a basis for reducing a period of disqualification because of the hardship that would otherwise be experienced.

83. The absence of such need, however, cannot be an aggravating factor. It is curious that such an experienced Magistrate would have taken it into account in that way, but it has to be said that the factor was mentioned in sentencing submissions by the appellant's counsel, though not as an aggravating factor.

84. There is no doubt that there were factors pointing to the need for a significant disqualification. The blood-alcohol concentration was high, though not the highest that, regrettably, is seen from time to time in the courts. In addition, the manner of driving was erratic, though no actual danger was apparent.

85. On the other hand, there were substantial factors pointing to leniency. The appellant was a young man, though age is perhaps not quite so significant in regulatory offences such as these. The appellant had no prior convictions. Whilst his driving experience was not long, it was not an insignificant period and, in any event, it is often in the early period of driving, when young men are first granted a licence, that offences are committed. He entered a plea at the first occasion the matter was in court. The Learned Sentencing Magistrate referred to all of these matters. Further, however, there were other relevant matters.

86. The journey proposed was a short one. The appellant had a habit of not driving after drinking and made specific arrangements to avoid that. The appellant had expressed remorse. He was a person of positive good character: Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176 (at 184; [45] to [47]). I do note that none of those matters were mentioned by the Learned Sentencing Magistrate though, having been mentioned by the appellant's counsel earlier in the sentencing submissions, one would expect they had been taken into account. It is, however, difficult to decide what has and has not been taken into account when some matters are mentioned and others are not.

87. It seems to me that, applying the principles to which I have earlier referred, there are good reasons for making a substantial reduction in the period of disqualification. They will reinforce the appropriate attitude evinced by the appellant to drink-driving and hopefully ensure no further repeat of the offences.

88. If all the mitigating factors had been taken into account, when balancing the seriousness of the offence and not including as an aggravating element the lack of a need for the appellant to drive in the course of his employment, the reduction in the period of the disqualification is manifestly excessive. In addition, his Honour should not have considered that matter as aggravating the offence for this purpose.

89. In my view, the aggravating and mitigating factors lead me to the view that a period of nine months disqualification would be the appropriate period and I will so order.

I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.

Solicitor for the respondent: ACT Director of Public Prosecutions