CRIMINAL LAW - Sentencing - consideration of good character - consideration of personal stresses - proof of aggravating features in sentencing - proof of prevalence of an offence

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT) ss 17, 33, 35, 37

Magistrates Court Act 1930 (ACT) s 216, Pt 3.10, Div 3.10.2

Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4E, 8, 12, 19

Spent Convictions Act 2000 (ACT)

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

Balthazaar v The Queen [2012] ACTCA 26

Childs v Credlin (Unreported, Magistrates Court of the Australian Capital Territory, Magistrate Doogan, 10 September 2013)

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Hargreaves v Chakley (1903) 9 Argus LR 78

Harper v Low [2009] ACTSC 136

Hevesi-Nagy v Sarhan [2013] ACTSC 124

Higgs v The Queen [1999] FCA 1562

Hoang v Garrett [2011] ACTSC 169

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

Islam v The Queen [2013] ACTCA 10

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Minear v Collyer [2008] ACTSC 139

Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186

Pfeiffer v The Queen [2009] NSWCCA 145

R v Cooper [2012] ACTCA 9

R v Davis (1980) 2 Cr App R (S) 168

R v Eisenach [2011] ACTCA 2

R v Griggs [1999] FCA 1573; (1999) 95 FCR 490

R v Jabaltjari (1989) 46 A Crim R 47

R v Meyboom [2012] ACTCA 48

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Petrovic (1984) 10 DLR (4th) 697

R v Ragen (1916) 33 WN(NSW) 106

R v Ryan (1988) 33 A Crim R 288

R v Williscroft [1975] VicRp 27; [1975] VR 292

Sutherland v Luchetti [2013] ACTSC 196

Travini v Starczewski [2009] ACTSC 123; (2010) 169 ACTR 1

Wong v The Queen [2001] HCA 64; (2009) 207 CLR 584

Woodlee v Callaghan [2013] ACTSC 60

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The finding of guilty of Joso Sladic on his plea of guilty to the offence of being a driver of a motor vehicle on a road with, in the relevant period, the prescribed concentration of alcohol in his breath be confirmed.

3. The conviction sentence and orders of the Magistrates Court be set aside.

4. In lieu, Joso Sladic be required, under s 17 of the Crimes (Sentencing) Act 2005 (ACT), to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months.

1. On 25 April 2013, the appellant, Joso Sladic, was driving his car along Namatjira Drive, Weston, when he was stopped by police. He was subjected to a screening test under s 8 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act).

2. When the test proved positive, Mr Sladic was taken into custody and to Woden Police Station where he was then, with his consent, taken to Tuggeranong Police Station. There, he was required to provide a sample of his breath for analysis under s 12 of the Alcohol and Drugs Act. That analysis showed that he had 0.064 grams of alcohol per 210 litres of breath.

3. Driving with that concentration is an offence against s 19 of the Alcohol and Drugs Act and, under s 4E of that Act, is, for sentencing purposes, a Level 2 concentration, though the lowest prescribed level for the purposes of the driver licence held by Mr Sladic.

4. Mr Sladic was summonsed on 5 June 2013 to appear in court on 2 July 2013, which he did, and he then pleaded guilty. Mr Sladic's counsel submitted that a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) would be appropriate. The learned Chief Magistrate, however, convicted Mr Sladic and fined him $220 with court costs of $69, Criminal Injuries Compensation Levy of $50 and a Victims of Crime Levy of $10, totalling $349, and allowed him three months to pay those amounts. Her Honour reduced the disqualification from holding or obtaining a licence to the minimum disqualification of two months from the default period of six months.

5. Mr Sladic has appealed against the entry of the conviction.

6. This Court is given jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals in criminal matters such as this appeal. That includes an appeal seeking a non-conviction order. See Travini v Starczewski [2009] ACTSC 123; (2010) 169 ACTR 1.

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

8. 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.

9. 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.

10. Specific errors may be errors of law, errors of fact, taking into account irrelevant or extraneous considerations, or failing to take account of relevant or material considerations.

11. 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.

12. 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. Mr Sladic filed his Notice of Appeal the same day as he was sentenced, on 2 July 2013.

i. Her Honour erred in convicting the appellant in that she either failed to take into account adequately or at all:

b. The appellant's significant contrition and remorse;

c. The appellant's otherwise recent good character;

f. The low level of objective seriousness of the offence.

ii. Further, and in the alternative, Her Honour erred in convicting the appellant and imposing a sentence that is manifestly excessive.

iii. Further, and, in the alternative, on the facts presented to Her Honour, the sentence imposed is unreasonable or plainly unjust.

16. At the hearing of the appeal, I gave Mr Sladic leave to amend the grounds of appeal to add a further ground, namely:

Her Honour erred in failing to take into account the appellant's plea of guilty or in failing to explicitly state the appellant's plea of guilty was taken into account.

17. Mr Sladic sought also to delete ground (ii) and I required an Amended Notice of Appeal to be filed and served within seven days. This appears not yet to have been filed.

18. The broad circumstances of the offences have been set out above. From the Statement of Facts and the sentencing proceedings, I find as follows.

19. Mr Sladic had, on the evening of 25 April 2013, been out to dinner with a friend. Mr Sladic's daughter, who had had a promising career as a model and playing basketball, had become addicted to drugs and rehabilitation was not working. Mr Sladic had done his best to support her but she was relapsing and Mr Sladic had gone to dinner with his friend to discuss his problems.

20. He had three glasses of wine with dinner and then left shortly before 10:00 pm to go home. He took his friend with him as a passenger.

21. As I have noted above, he was stopped by police and subjected to a screening test. The Statement of Facts does not suggest that any manner of driving drew Mr Sladic to the attention of the police. He was polite and co-operative with the police. The Statement of Facts disclosed that the weather conditions at the time were fine, the road was dry bitumen in good condition and traffic was light.

22. The Statement of Facts further disclosed that Mr Sladic did not smell of intoxicating liquor, his face colour was normal, his speech was normal, and his ability to understand was good. The police officer who tested Mr Sladic formed the opinion that he was not affected by intoxicating liquor.

23. As I have noted, Mr Sladic was summonsed to appear in the Magistrates Court on 2 July 2013 and he did so. He entered a plea of guilty on that day, the earliest time at which he could do so.

24. The Statement of Facts was tendered together with Mr Sladic's prior criminal record. These do not appear to have been marked as exhibits. See Grooms v Toohey (2012) 7 ACTLR 1 at 6; [24].

25. He had organised himself sufficiently for that appearance that he had three character references which his counsel tendered.

26. Submissions were then made, Mr Sladic's counsel submitting that a non-conviction order was appropriate. The prosecution submitted that there was "general and growing prevalence" of drink-driving in the community and that the purpose of the legislation was to protect public safety and to warn drivers that they are at danger to themselves and the public. It was noted that the presence of a passenger was an aggravating factor and that Mr Sladic did "not come to court with a clean traffic or criminal offence".

27. Mr Sladic is sixty-four years old. He came to Australia from Croatia in the late 1960s and has held a driver licence since 1967, when he was seventeen.

28. When he arrived in Australia, he was a wood chopper but he worked on various road projects in the Territory. He later became a stonemason and worked in that capacity until he was forced to retire due to an injury to his back in 1997.

29. He has had some significant illnesses in 2001 and 2011, but managed to overcome them.

30. Since the late 1980s, he has raised four of his children as a sole parent, much of his recent time being taken up with assisting his daughter to address her drug addiction.

31. He attends church regularly and participates as a volunteer in community outreach. He assists his friends, for example, with babysitting. The referees mentioned the effort he put into his own family and the difficulties he has had to face.

32. His referees also attested to the fact that he is a loyal and trustworthy friend and is a responsible citizen. He is hardworking, displaying a high degree of integrity and personal reputation. They described him as a responsible driver and that the offence of drink-driving was an aberration and out of character.

33. The referees had known him for fourteen, sixteen and thirty-five years respectively.

34. One referee reported that Mr Sladic had explained that he was, at the time of the offence, experiencing stressful personal issues which may have impacted on his behaviour.

35. Mr Sladic, however, does have a criminal record. It consists of twenty-six offences in seventeen court appearances between 1979 and 1994 relating to offences committed between 1979 and 1993. They include twenty traffic offences, all but perhaps one of which would now be resolved by traffic infringement notices, those being eight speeding offences, four offences of having an unregistered motor vehicle and four of failing to have third party insurance. These are not insignificant regulatory offences, of course.

36. There are no drink-driving or more serious traffic offences on his record.

37. He also has a conviction for larceny and for being found in a betting house. The first offence occurred in late 1979 and the second in 1980. He has a conviction for playing an unlawful game from 1982. He has a conviction for being found in a gaming house in 1987 and, more seriously for blackmail in 1989, for which he was sentenced to a term of imprisonment wholly suspended.

38. He is not recorded for any offences committed since October 1993, that is, some months less than twenty years prior to this offence.

39. Her Honour referred to the plea of guilty, entered on the first occasion and to the maximum penalty, namely, a fine of $550 and a default disqualification of six months, reducible to no less than two months.

40. Her Honour described the offence as Mr Sladic having been stopped as a result of a "random breath test" and her Honour noted the reading and that he was not observably affected by alcohol. The three references were noted, as was the fact that none had referred to Mr Sladic's prior criminal record. Since two of the referees had not known him at that time, that is perhaps understandable, but it is, of course, desirable that referees are told of all relevant information and this includes prior, even stale or spent offences, as the traffic offences clearly were. See Spent Convictions Act 2000 (ACT).

41. Her Honour noted his contribution to the community and his driving record and that it did not include any offence of "this type", presumably drink-driving. That is the case.

prior convictions of different types, some for dishonesty, and some offences in relation to gambling and some offences in relation to the use of your driving licence

43. That perhaps fails to distinguish fairly between the number of the various offences; there were only two offences of dishonesty and only three offences in relation to gambling (offences repealed in 2009), whereas, there were twenty relating to the use of his driver licence. In addition, her Honour did not point out that the most recent were about twenty years old.

44. Her Honour then referred to the explanation that Mr Sladic was stressed and commented that

it seems to me ... not particularly mitigating. We all have personal stressors and it's no excuse to not be cognisant of the level of alcohol that one is consuming.

45. It might be commented that while many people feel stress, it is rather the actual level of stress that was relevant and that it was not put forward as an excuse but as an explanation.

46. Her Honour referred to the absence of any prior drink-driving offences as "very much in [Mr Sladic's] favour" but that it was offset by the other convictions so that he is "not a person generally of good character except in more recent years". Her Honour then referred to the need for general deterrence.

47. Her Honour then imposed the sentence which was a fine which was 40% of the maximum fine for the offence.

48. Her Honour was asked for four months to pay. After a cursory investigation of Mr Sladic's finances, her Honour granted three months to pay.

49. For Mr Sladic, it was submitted that the learned Chief Magistrate failed to apply the principles as to a plea of guilty set out by the NSW Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383 at 395; [52], where Spigelman CJ said:

The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight.

50. It was submitted that this principle had been cited with approval in this jurisdiction in Minear v Collyer [2008] ACTSC 139 at [18] and R v Cooper [2012] ACTCA 9 at [49].

51. It was submitted that the cursory reference to the plea of guilty in her Honour's sentencing remarks was not sufficient to satisfy the requirement.

52. It is important, however, to note what, in the same paragraph, Spigelman CJ went on to say:

This conclusion is significantly influenced by the express statutory obligations. The position may not be the same with respect to other matters which are required to be taken into account, either at common law or by reason of a general scheme listing relevant considerations, such as that found in s 16A of the Crimes Act 1914 (Cth).

53. As the respondent submitted, the statutory regime is different in this Territory; s 33 of the Crimes (Sentencing) Act 2005 (ACT) requires a plea of guilty to be taken into account (to that extent reflecting the common law: R v Davis (1980) 2 Cr App R (S) 168 at 170) but the more specific requirements as to the discount, set out in ss 35 and 37, only apply where it is likely that an offender will be sentenced to a term of imprisonment. That, of course, cannot occur in this case, for the maximum penalty is five penalty units (that is, at the time, a fine of $550).

54. As was pointed out, both Minear v Collyer and R v Cooper involved offences for which a term of imprisonment was imposed.

55. It is appropriate that where the more serious penalties are to be imposed, a more careful, transparent and structured approach to sentencing is warranted.

56. Reference was made in the submissions made on behalf of Mr Sladic to the decision of Burns J in Hoang v Garrett [2011] ACTSC 169 at [9] where his Honour commented that the learned Sentencing Magistrate did not "specify whether and in what way he took into account the appellant's plea of guilty".

57. That was, however, a case in which the sentencing comments were brief, described by Burns J as "quite scant" (at [8]). There was, there, no mention at all in those remarks, reproduced in full in his Honour's reasons for judgment, of the plea of guilty or when it was entered.

58. These matters do take the case far from the circumstances here. Her Honour made express reference to the plea of guilty.

59. Thus, this is not a case, like Harper v Low [2009] ACTSC 136 at [37], where, again, there was no mention in the sentencing remarks or during the sentencing hearing of the plea of guilty.

60. Thus, it cannot be said that her Honour did not take the plea of guilty into account. I consider that it must be recognised that the reasons required of a Magistrate cannot be unreasonably complex. Her Honour was not required to explain in detail precisely how the plea was taken into account, though the sentence itself needs to be considered as to whether it disclosed that, in the light of the plea, it was manifestly excessive.

61. Mr Sladic's counsel prepared quite detailed submissions as to why her Honour's reference to the plea of guilty was not sufficient. Thus, it was submitted:

[T]hat, an 'express reference' should include a reference to the 'taking into account' or the like of the plea of guilty. An express reference or an actual reference need not be long or particularly explanatory; it need not demonstrate how or in what way, if anything, the plea of guilty mitigated a sentence, however with respect, the reference must be clear that it was taken into account ...

With respect, given the utilitarian value of a plea of guilty referred to at paragraph 23 of these submissions, and viewed in the context of the obligations upon the sentencing judicial officer to provide reasons for their decision, it should not be merely left for a defendant to have to infer whether or not their plea of guilty has in fact been taken into account.

62. It does not seem to me that authority supports these submissions and it is unclear what utility they ultimately suggest. Even if the learned Chief Magistrate had added "I take into account the plea of guilty entered at the earliest time" there can only be an inference as to the role it actually played in the process and that does not prevent a party from challenging the sentence on the ground of manifest excess or inadequacy. To go further, indeed, may infringe the requirements of the High Court (absent statutory modification) that mandates sentencing to be a process of instinctive synthesis, as in Wong v The Queen [2001] HCA 64; (2009) 207 CLR 584 at 611; [75].

63. As to the second ground of appeal, that her Honour failed to take into account or adequately to take into account the six matters listed which I have set out above (at [15]), the position is a little more complex.

64. The failure to take into account a factor that statutorily (or otherwise) a court is obliged to take into account is, of course, an error of law. That amounts to a failure to take account of a relevant consideration as stated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5. That does, however, depend on an obligation to take the matter into account and requires a failure to do so, not merely a failure to do so adequately.

65. The failure to take a factor adequately into account, or to accord it due weight is, as Gleeson CJ and Hayne J pointed out in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325; [5], properly understood as a particular of the ground that the sentence was manifestly excessive or manifestly inadequate. This approach has been approved by the Court of Appeal on a number of occasions in R v Eisenach [2011] ACTCA 2 at [38]- [40]; R v Meyboom [2012] ACTCA 48 at [52]- [53]; Balthazaar v The Queen [2012] ACTCA 26 at [64] and Islam v The Queen [2013] ACTCA 10 at [79]- [84].

66. The complaint made on Mr Sladic's behalf focussed in the submissions on two aspects, the conclusion of her Honour that Mr Sladic was "not a person of generally good character" and that the personal stress was not a mitigating factor.

67. The first of these matters is particularly important because it is one of the specified criteria set out in s 17(3) of the Crimes (Sentencing) Act which the court must consider.

68. There is no doubt that Mr Sladic had a significant criminal record; traffic offences are crimes, though they may be regarded in a particular light in considering the seriousness of the record or for other purposes.

69. Nevertheless, Mr Sladic had committed no criminal offences since 1993 and no non-traffic criminal offences since 1989. That is respectively about twenty and twenty-four years. That is a significant period of time, at least double the period that the legislature has set for the purposes of the Spent Convictions Act.

70. In addition to that, the Court had character references which were accepted and which showed positive good character during that period. As set out in Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176 at 184; [45]- [47], this was not merely an absence of offences or other matters prejudicial to his character, but positive conduct and contributions to the community.

71. It seems that her Honour did not consider the circumstances as carefully as was appropriate. That an offender has prior convictions does not mean that a person is not of good character. As McClellan CJ at CL, with whom Simpson and Buddin JJ agreed, said in Pfeiffer v The Queen [2009] NSWCCA 145 at [18]:

The applicant submitted, in my opinion correctly, that if his Honour concluded that the prior offences were stale and of no consequence then the appropriate conclusion was that the applicant was otherwise a person of good character.

72. It is difficult to see any basis, in the light of the evidence, for suggesting that the offences were not stale. Whether they were of no consequence may admit of some argument.

73. Her Honour said to Mr Sladic, "you're not a person generally of good character except in more recent years". It is not clear what that means. It seems to me that her Honour was saying that in earlier times, presumably between 1979 and 1993, he was not of good character. That can certainly be accepted. This characterisation may have continued for sometime thereafter. Her Honour, however, was arguably saying that he was now of good character but seemed to imply that this did not permit this factor to be fully taken into account, especially for the purposes of considering a non-conviction order, because of the earlier offending.

74. Mr Sladic clearly rehabilitated himself after 1993. He committed, until this year, no offences with which he has been charged. He worked hard, contributed to the community and gained, as the referees showed, an excellent reputation. That, in my opinion, is positive good character.

75. It seems to me that the relevant time for an assessment of an offender's good character is when the offender is to be sentenced. Her Honour seems to have found, in my view correctly, that Mr Sladic is now of good character. That is very relevant to the exercise of a discretion under s 17 of the Crimes (Sentencing) Act, but her Honour did not appear to give it any weight. That seems to me to be an error.

76. As to the personal stress, it seems to me that her Honour was rather dismissive of that matter. I cannot imagine the level of stress caused by having a daughter drug addicted and committing serious offences that deserve imprisonment. It does not seem to me to compare with the stress of whether one is going to miss the bus or miss a medical appointment. That many, if not most, or indeed all, members of the community experience stress does not mean that some stress experiences are not greater than other stress experiences, nor that the difference is not relevant when considering any mitigation in sentencing, because they explain, not excuse, the behaviour and are relevant to the culpability of it.

77. This, it seems to me, is part of the circumstances in which the offence was committed and which, given the stress, is an extenuating one.

78. The other circumstances were that there was no evidence of any traffic in the area, the arresting police officer considered that Mr Sladic was not affected by alcohol and his driving had not drawn the attention of police.

79. Her Honour considered that having a passenger in the vehicle was an aggravating feature as the passenger is "put at risk by the driving": 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 at 340; [146]. I do not consider that this factor negates all the other mitigating matters.

80. The offence is, itself, serious but this was not a very serious version of the offence. The maximum penalty is a fine. That is relevant to determining the seriousness of the offence, as noted in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]- [31]. Nevertheless, it is a very common offence and, as properly submitted by the prosecution, directed at the safety of the community.

81. In order to determine whether the sentence was unreasonable or unjust, I have had regard to current sentencing practice. That is hard to ascertain for such an offence, since it is not common that this Court has to deal with such offences, and there is no easy mechanism to determine the approach in the Magistrates Court.

82. I have, however, considered a number of relevant decisions. In Travini v Starczewski, I considered an appeal where the possibility of a non-conviction order was sought. The reading in that case was 0.073 gm of alcohol per 100 ml of blood. The appellant had only had two prior offences, one being a traffic offence, and no other offences, the last offence being eighteen years before the drink-driving offence. There, I held that the commission of these offences and the level of the reading meant that a non-conviction order should not be made, though I substantially reduced the time of the licence disqualification.

83. I did review (at 26-8; [85]-[93]) earlier decisions which had approached the granting of a non-conviction order in a somewhat restricted way.

84. Since then, the courts have seemed to be somewhat more amenable to the making of such non-conviction orders.

85. In Hoang v Garrett, the appellant had been driving for just over twenty years with no previous convictions, described by the Appeal Judge (at [4]) and "[o]f particular significance". The blood alcohol reading, however, was 0.088%, a relatively low Level 3 reading. The police attending suggested that the appellant was "heavily affected by alcohol", an opinion that his Honour treated with scepticism. It appears that this, too, was a random breath test, as there was no mention of the manner of the appellant's driving. The appellant was in employment and had three children. There seemed to be no other relevant circumstance. His Honour was, however, particularly impressed by the early plea of guilty, saying (at [14]):

In my opinion, giving proper weight to the early plea of guilty entered by the appellant, and to his previous history, it would have been appropriate for his Honour to have dealt with the matter by way of a non-conviction order.

86. In Hevesi-Nagy v Sarhan [2013] ACTSC 124, the appellant had been driving for twenty-seven years with one prior conviction "unrelated to an offence of this kind". The blood alcohol reading was 0.083% which was a low range Level 3 reading. The appellant was of positive good character and had completed a drink-driving program since being charged. The appellant appears to have come to the notice of police by her failure to comply with a stop sign but "no other road user was apparently put in danger". The Appeal Judge considered that "[he] could feel impelled to apply s 17".

87. In Sutherland v Luchetti [2013] ACTSC 196, the appellant had been driving for twenty-four years without conviction. The blood alcohol reading was again Level 3, though just in that range, being 0.081 grams per 210 litres of breath. He had "a moderate odour of intoxicating liquor and watery eyes". There was a good character reference from the appellant's employer and also from a neighbour. It appears, and his Honour seems to have found, that the appellant came to the attention of police because he was driving at more than the speed limit. The appeal judge considered the appellant was "an appropriate candidate for a non-conviction order". Indeed, his Honour was "a little surprised that that was not the result".

88. In Woodlee v Callaghan [2013] ACTSC 60, however, the appellant did not persuade the court that a non-conviction order should be made. In that case, the appellant had been driving for thirty-five years with no criminal record. The blood alcohol concentration, however, was 0.175%, a Level 4 reading. The appellant had decided to drive home after "an uncomfortable and threatening incident at the taxi rank". In that case, however, the Appeal Judge found no error in the reasons of the learned Sentencing Magistrate in refusing to make a non-conviction order and declined to interfere.

89. That the approach I have outlined is not just that of this Court on appeal, but applies in the Magistrates Court itself may be seen from cases such as Childs v Credlin (Unreported, Magistrates Court of the Australian Capital Territory, Magistrate Doogan, 10 September 2013) where the defendant was sentenced to a non-conviction order when she was recorded having a blood alcohol reading of 0.075% but had been driving for twenty-one years without a conviction.

90. The learned Chief Magistrate, in the case before me, did consider the submission that a non-conviction order should be imposed, and said:

I've considered whether or not there's a basis for me to exercise my discretion pursuant to section 17 of the Crimes (Sentencing) Act and I've determined that there is not. As the prosecutor has quite rightly pointed out, general deterrence is a particular factor in relation to offending of this type.

91. If her Honour was suggesting by this comment that general deterrence was a bar to a non-conviction order, that is not correct. The learned Chief Justice held in Hevesi-Nagy v Sarhan (at [3]) that general deterrence, while important, is not a bar to the imposition of a non-conviction order.

92. It seems to me that the learned Chief Magistrate did disclose error in her reasoning. The question of general deterrence was not a bar to the granting of a non-conviction order and the fact was that, at the time of sentence, when the matter was to be considered, especially having regard to the time that had passed since Mr Sladic's last offence, he was a man of good character in the relevant sense It seems to me, too, the explanation of the stress-related circumstances was a very relevant factor.

93. In my view, this meant that her Honour's reasons left open the question of whether the sentence imposed was one that was unreasonable.

94. The prosecution properly pointed out that appellate courts have held that the ordinary consequence of a finding of guilt is the recording of a conviction: Balthazaar v The Queen at [53]; Higgs v The Queen [1999] FCA 1562 at [3]. That, of course, does not mean that a non-conviction order cannot be made; that would render s 17 of the Crimes (Sentencing) Act impotent.

95. It also does not mean that the failure to make such an order cannot be reviewed on appeal, as the decisions to which I have already referred (at [82]-[88]) make clear.

96. It seems to me that the matters I have identified justify appellate intervention if I am satisfied that another sentence should have been imposed.

97. That has given me anxious consideration. The relatively modest blood alcohol concentration in comparison to the respective concentrations in the decisions to which I have referred is a significant factor, especially as the opinion of the police officer was that Mr Sladic was not affected by alcohol.

98. The period of conviction-free driving is, probably, about the minimum range for such an approach, though I am not making any formal finding about this issue because it is not appropriate for a hard and fast rule to be laid down. It is, however, relevant that he has a very substantial period of driving experience, as her Honour did note, with no serious driving offences recorded in that time.

99. Mr Sladic's record is of concern. Had there been a more serious offence and, certainly, had there been a drink-driving offence, I do not consider that the circumstances would have justified the exercise of the discretion to make a non-conviction order.

100. In all the circumstances, however, and not without some hesitation, I consider that a non-conviction order should be made.

102. There is, however, one further comment I wish to make. The prosecutor referred in submissions to "the general and growing prevalence of drink driving in the community". While her Honour did not refer to that issue directly, it may well have affected her Honour's comment about "general deterrence".

103. Assertions of prevalence, especially as an aggravating feature in sentencing, are not to be mere rhetoric. Courts are, of course, entitled to take prevalence into account as noted in R v Griggs [1999] FCA 1573; (1999) 95 FCR 490 at 493; [12]; R v Williscroft [1975] VicRp 27; [1975] VR 292 at 299.

104. There is authority that, to an extent, a sentencer will be aware of prevalence from his or her own experience as Dowsett J pointed out in R v Ryan (1988) 33 A Crim R 288 at 293. Some older cases suggest some judicial notice can be taken of prevalence: Hargreaves v Chakley (1903) 9 Argus LR 78 at 79; R v Ragen (1916) 33 WN(NSW) 106. It is generally required, however, that aggravating features be proved beyond reasonable doubt: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ), 293; [57] (Kirby J).

105. There is no doubt that increased prevalence is something that must be proved by appropriate evidence. In Pavlic v The Queen [1995] TASSC 96; (1995) 5 Tas R 186 at 207-8, Slicer J said that "[p]revalence should be established by reliable data subjected to rigorous analysis". See also R v Jabaltjari (1989) 46 A Crim R 47 at 63 (Asche CJ); R v Petrovic (1984) 10 DLR (4th) 697 at 710.

I certify that the preceding one-hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the appellant: Ben Aulich & Associates

Solicitor for the respondent: ACT Director of Public Prosecutions