Stoehr v Meyer [2016] ACTSC 144

[2016] ACTSC 144

Appeal upheld. Re-sentenced to a disqualification period of two years.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Appeal from the Magistrates Court - appeal against sentence - appeal against licence disqualification period - alleged error of law - "default" period of disqualification erroneous starting point - Tindall v Spalding [2014] ACTSC 253; (2014) 10 ACTLR 198 and NSW Guideline Judgment (Re Attorney General (NSW) (No 3 of 2002) [2004] NSWCCA 303; [2004] 61 NSWLR 305) not followed - Burow v Hoyer (2015) 292 FLR 325 followed - appeal upheld

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - resentence - drive with prescribed concentration of alcohol in breath - determination of disqualification period - repeat offender - reduction of disqualification period

Magistrates Court Act 1930 (ACT) s 208

Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4F, 19, 32, 33

Road Transport (General) Act 1999 (ACT) ss 61A, 64, 65

Bullock v Bower (2015) 71 MVR 445

Burow v Hoyer (2015) 292 FLR 325

Newham v Cogle [2012] ACTSC 76

Re Attorney General (NSW) (No 3 of 2002) [2004] NSWCCA 303; [2004] 61 NSWLR 305

Tindall v Spalding [2014] ACTSC 253; (2014) 10 ACTLR 198

1. On 21 January 2015, the Magistrates Court convicted the appellant of two driving offences that occurred on 9 October 2014. For the offence of driving while licence suspended, the Court imposed a fine. For the offence of driving with a prescribed concentration of alcohol in the breath (level 3), the Court sentenced the appellant to 60 hours' community service, disqualified him from driving for three years and imposed a one-year supervised good behaviour order.

2. The appellant appealed against the severity of the sentence imposed for the drinkdriving offence.

3. The appellant was a repeat offender within the meaning of s 4F of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act). In 1999, he had been convicted in the Australian Capital Territory (ACT) of driving with a prescribed concentration of alcohol in his blood and had received an 18-month good behaviour order together with a restricted licence. In 2001, he had been convicted in New South Wales (NSW) of driving with a high range prescribed concentration of alcohol in his blood and had been fined and disqualified from driving for 12 months. In 2005, he had been found guilty in NSW of driving with a low range prescribed concentration of alcohol in his blood and, without proceeding to conviction, the sentencing court had imposed a good behaviour order.

4. On 9 October 2014, police attended the scene of a traffic collision on Hindmarsh Drive, Fyshwick. They blocked a turning lane with traffic cones. They observed the appellant's truck approaching the blocked turning lane at a speed that suggested that it would be unable to stop where required. The appellant's vehicle hit a traffic cone. The appellant applied the brakes heavily, locking the front wheels and causing the truck to skid into the intersection. At 10.14 pm, the appellant provided a sample that upon analysis was found to contain .144 grams of alcohol per 210 litres of breath. The applicable limit was .05 grams of alcohol per 210 litres of breath.

5. At the time of the offence, the appellant was psychologically stressed. He was embroiled in disputes within the governing committee of a small German cultural club to which he belonged. The appellant and his partner had recently assumed responsibility for the appellant's teenage son. In early October, they had received the upsetting news that the boy was returning to live with his mother. In early October, the appellant had also learned that his father had suffered a heart attack. Due to work commitments, the appellant had been unable to be with his father when the latter underwent surgery.

6. The appellant is a landscaping contractor. He requires his licence for landscaping work and for the purpose of undertaking work as a volunteer fire truck driver in the Rural Fire Service. He has been a volunteer firefighter for about 30 years. From 1984 to 1990, he worked as an SAS trooper in the Australian Army. He has held the office of President of the Harmonie German Club in the ACT. The appellant is hard-working, honest and trustworthy.

7. The Magistrates Court imposed a driver disqualification order for a period of three years. The disqualification was not merely imposed by statutory operation: see, eg, Bullock v Bower (2015) 71 MVR 445. The bench sheet noted:

Convicted. Disqualified from holding or obtaining driver's licence for three years from today (not backdated - breach ISN) therefore 21/1/15 - 20/1/18...

8. In relation to the question of disqualification, the Court stated:

In terms of the disqualification period, I do note the significance of your licence for you in the nature of the work that you do but I am also informed that with the current interlock provisions you will be eligible at very short notice to apply for an interlock which will allow you to drive your vehicle for the purposes of your employment safely in a way where neither you nor the community is at risk. Having regard to all those matters, I am of the view that it is not appropriate in the circumstances to reduce the period of disqualification, that there is no good reason to do so and that the automatic period should apply. ... You will be disqualified from holding or obtaining a driving licence for three years from today. That will not be backdated in light of the breach of immediate suspension notice. The disqualification commences today and will be in place to 20 January 2018. (Emphasis added.)

9. The appellant appealed against the sentence imposed for the drink-driving offence. The grounds of appeal identified in the notice of appeal were:

(a) the sentence was manifestly excessive; and

(b) the sentencing magistrate erred in their approach to the default period of disqualification.

10. At the hearing of the appeal, the first ground was abandoned.

11. In relation to the remaining appeal ground, the appellant submitted that the sentencing court erred in using the "default" period of disqualification as a starting point, rather than sentencing the appellant by a process of instinctive synthesis, contrary to Burow v Hoyer (2015) 292 FLR 325 (Burow).

12. Section 208(1)(g) of the Magistrates Court Act 1930 (ACT) enables a person to appeal from the imposition of a driver disqualification order under the Road Transport (General) Act 1999 (ACT) (RTG Act). This provision took effect on 24 April 2013: see Crimes Legislation Amendment Act 2013 (ACT) s 2.

13. An appeal under s 208 is a review appeal. In order to succeed, an appellant must demonstrate an error of fact or law; this may include an error in the exercise of discretion.

14. Section 19 of the RTAD Act, creates the offence of driving with the prescribed concentration of alcohol in the driver's blood or breath.

15. Section 33 of the RTAD Act contains the "automatic driver licence disqualification" provisions that apply to s 19 for repeat offenders. It provides:

1. Automatic driver licence disqualification - repeat offenders, s 19

(3) If a court convicts a person other than a special driver of an offence against section 19 (1) and finds that the concentration of alcohol in the person's blood or breath was at level 2, 3 or 4, the person is automatically disqualified from holding or obtaining a driver licence for -

(a) the period mentioned in the item applying to that level in table 33, column 4; or

(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item - the shorter period.

Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66.

16. The reference to "automatically disqualified" is obviously a misnomer which is best ignored; a "default disqualification" under s 33(3)(a) might be "automatic", but a court ordered disqualification period is not.

17. In relation to a repeat offender who drives with the alcohol concentration level with which the appellant was driving, column 4 of Table 33 nominates a "default disqualification" period of three years and column 3 nominates a "minimum disqualification" period of six months.

18. Section 32 of the RTAD Act contains the automatic driver licence disqualification provisions that apply to s 19 first offenders. It is in virtually identical terms to s 33 except that the applicable table (Table 32) sets significantly lower "default disqualification" and "minimum disqualification" periods in columns 4 and 3 respectively.

19. Division 4.2 of the RTG Act deals with licence suspension, disqualification and related matters. Under s 61A of that Act, "automatic disqualification provision" is defined to include ss 32 and 33 of the RTAD Act. Section 64 of the RTG Act provides:

1. Court may order disqualification for other offences

(1) A court that convicts a person, or finds a person guilty, of an offence against the road transport legislation may disqualify the person from holding or obtaining a driver licence for the period the court considers appropriate.

(2) However, if the offence is an offence against an automatic disqualification provision, any order under subsection (1) is subject to the automatic disqualification period for the offence.

(3) If the court disqualifies the person, the person is disqualified from holding or obtaining a driver licence for the period ordered by the court.

(4) A disqualification under this section is in addition to any penalty imposed for the offence.

20. Section 65 of the RTG Act enables a court to impose an indefinite disqualification upon certain convicted offenders after considering the matters that sub-s (7) mandates to be considered. Subsections 65(1), (2), (3) and (7) provide:

(a) a person is disqualified (whether or not by court order) from holding or obtaining a driver licence because of being convicted, or found guilty, of an offence, or offences, against the road transport legislation or any other territory law; and

(b) the total period of disqualification (the compulsory disqualification period) is 12 months or more.

(2) If the court that convicts the person, or finds the person guilty, of an offence mentioned in subsection (1) is satisfied, after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that it is necessary in the public interest to do so, the court may disqualify the person from holding or obtaining a driver licence from the end of the compulsory disqualification period until the disqualification is set aside under subsection (3).

(3) If a court is satisfied, on application by a person who is disqualified under subsection (2) and after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that the disqualification is no longer necessary in the public interest, it may set the disqualification aside.

(7) For subsection (2) or (3), the court must consider the following matters:

(a) the total period for which the person concerned is, or has been, disqualified from holding or obtaining a driver licence;

(b) the person's history of offences (including offences for which infringement notices were served on the person) -

(i) against the road transport legislation or a law of another jurisdiction corresponding to it (or to part of it); or

(ii) against another law of any jurisdiction in relation to the use of motor vehicles;

(c) any relevant rehabilitation or remedial action undertaken, or to be undertaken, by the person;

21. In Burow, Refshauge J considered s 32 of the RTAD Act. His Honour considered the historical context within which those provisions sit, and made the following points:

(a) Prior to 1977, the suspension or cancellation of a driver's licence was the automatic consequence of a relevant conviction. However, from 1977, suspension or cancellation was the result of a court order.

(b) As a result of the 1977 amendments, it remained necessary for a court to make a disqualification order but a maximum disqualification period was introduced. Sections 32 and 33 each empowered the sentencing court to disqualify an offender from holding a driving licence "for a period not exceeding the period specified in the third column of the table opposite (the relevant level of intoxication)." The tables that were introduced to ss 32 and 33 fixed what were described within the tables as "maximum disqualification" periods according to the level of the offender's intoxication. In relation to "level 3" intoxication in a repeat offender, Table 33 set a "maximum disqualification" period of three years.

(c) In 1999, ss 32 and 33 (including the tables to those provisions) were replaced by the current provisions. "Minimum disqualification" and "default disqualification" periods replaced the former "maximum disqualification" period. However, for both first offenders and repeat offenders and for each level of intoxication, in each case the new "default disqualification period" was identical to the former "maximum disqualification period". When the Bill was introduced, the Minister for Urban Services (who presented the Bill) described the minimum periods as "mandatory", but made no reference to "maximum disqualification" and did not explain the meaning of "default disqualification". The Opposition proposed amendments which would have enabled a court to impose "another period of disqualification", rather than "a shorter period of disqualification that is not less than the period mentioned in column 3", but the proposed amendments were not accepted.

22. After considering the historical context, Refshauge J observed:

[27] There is nothing in this material that suggests to me that the amendment to the Alcohol and Drugs Act was converting the pre-amendment expressed "maximum" period of disqualification to an expected, usual or required period of disqualification. Indeed, the negativing of the proposed amendment suggests the contrary.

...

[30] As enacted, the automatic disqualification referred to either the shorter period in the order that the court may make or, if the court makes no order, the default period, as the case may be. Thus, the legislation provided that the default period is not the automatic disqualification period unless the court fails or declines to set another period.

[31] The reference to the period to be set by the court being "shorter" is consistent with the pre-amendment reference to "maximum" in the tables to ss 32 and 33 of the Alcohol and Drugs Act. It may be thought that to change that, despite the clear words used, to an ordinarily expected or required period would have at least required some clearer explanation, such as a comment in the Explanatory Memorandum, particularly as there was no significant Second Reading Speech.

[32] The change from "maximum" to "default" was otherwise unexplained in any extrinsic materials that I have been able to access. The structure of the amendment does not suggest that the nature of the period of disqualification has necessarily changed.

[33] On the other hand, that it is now a "default" period rather than a "maximum" period may suggest that it is likely to be imposed somewhat more frequently; a "maximum" period is reserved for the worst category of offence (as explained in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 478), a "default" period will be imposed when the court does not otherwise order.

[34] Importantly, there is nothing in the words used in the newly introduced provisions to imply some particular restraint or constraint on the court when faced with the need to consider whether, under s 32(2)(b), 32(3)(b), 33(2)(b) or 33(3)(b) of the Alcohol and Drugs Act it should impose a shorter period of disqualification. If recourse to extrinsic materials is necessary, nothing is to be found there to suggest any such constraint or restraint.

23. His Honour went on to note the important differences between the NSW legislation and that in the ACT. In NSW, an offender is "automatically disqualified" for a specified period or, if the convicting court "thinks fit to order a shorter ... or longer period" (but not less than the statutory minimum), the offender is disqualified for the court-ordered period. In other words, in NSW, a court may order a shorter or longer period but, if the court does not do so, then an automatic period is imposed by statute.

24. The correct approach to the imposition of disqualification periods in NSW was discussed in the guideline judgment of Re Attorney General (NSW) (No 3 of 2002) [2004] NSWCCA 303; [2004] 61 NSWLR 305 (NSW Guideline Judgment). In the leading judgment at [126], Howie J (with whom Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreed) stated that the automatic period of disqualification should not be treated as a maximum period, but merely as a "default period that operates on conviction unless some other order is made...". His Honour stated that the automatic period should apply "in the usual case in which there is no need to vary the period one way or the other." (Emphasis added.) At [127], his Honour criticised courts for failing to have sufficient regard to automatic disqualification periods and stated that, if the automatic period was reduced, the court should express its reasons for doing so.

25. In Burow at [51], Refshauge J observed that there were three significant differences between the NSW legislation and the ACT legislation. First, in the ACT what were originally "maximum" disqualification periods became "default" periods without any change in the length of those periods and without any explanation that the change in terminology was designed to implement a change in policy. Second, in NSW the key disqualification provisions confer upon courts the discretion to both shorten and lengthen the otherwise "automatic" disqualification period, whereas in the ACT, the key disqualification provisions (ss 32 and 33 of the RTAD Act) confer only a discretion to shorten the "default" period. Third, in the ACT the RTG Act confers a general discretion to impose a disqualification period, but the general discretion is "subject to ... [any] automatic disqualification period for the offence"; a similarly general provision in NSW does not operate in a way that limits the imposition of a longer period of disqualification.

26. What meaning is then to be ascribed to the expression "default disqualification"?

27. I agree that the expression "default" carries a meaning along the lines of that for which the prosecution contended on this appeal; i.e. the expression "default" refers to an automatic outcome that will apply in the absence of another order being made or, as the prosecution put it, another command being issued.

[58] ... [I]t is the disqualification where the court does not find a good reason to order a shorter period. Thus, though still a maximum, it is not simply a maximum in the sense of being reserved for the worst case of the offence.

[59] On the other hand, I see nothing in the structure, words or history of the Alcohol and Drugs Act to show that the default disqualification is or is intended to be "the usual" period of disqualification as described in the Guideline Judgment or, indeed, how the usual case of the offence should be described.

...

[64] ... [T]he real question for the court is what, having regard to all relevant factors and the reasons for whether a period shorter than the default period should be imposed, is the appropriate period to punish the offender and to protect the public. If it is a shorter period than the default period, then it should be imposed.

[65] The default period is the period applicable when there are no reasons by which the court, which must first consider whether the appropriate period is shorter than the default period, can justify setting a shorter period. To approach the default period as a usual, expected or required period of disqualification would be to put a gloss on the legislation that is neither warranted by evidence nor justified by the words of the legislation, the Act as a whole or its legislative history.

...

[67] I am not sure that this approach is different from that of Burns J in Tindall v Spalding (2014) 68 MVR 150 but, insofar as it may be seen to be so, it seems to be that the legislative history and statutory construction lead to the conclusions at which I have arrived and which seem to me require the approach I have articulated.

29. In Tindall v Spalding [2014] ACTSC 253; (2014) 10 ACTLR 198 (Tindall), Burns J referred to an earlier decision of Refshauge J concerning the operation of s 33, in which Refshauge J had stated that, consistent with the NSW Guideline Judgment, the task of a sentencing judge was to identify "whether there ... [was] a sufficient and appropriate reason to reduce the [default disqualification] period": Newham v Cogle [2012] ACTSC 76 at [46]. As explained above, in the post-Tindall decision of Burow, Refshauge J resiled from his earlier approach, which had placed considerable emphasis on the NSW Guideline Judgment.

[17] Where there is good reason to exercise the discretion given to the court under s 33 of the Act to impose a shorter period of disqualification than the automatic disqualification period, the court should nevertheless give consideration to the automatic period applicable for the offence, not as a maximum or a "tariff", but as a yardstick, being an expression of the legislature of the disqualification period that should usually apply. This is consistent with the approach dictated in the Guideline Judgment. The automatic disqualification period should only be reduced to the extent required to address those matters which take the offender outside the usual case... (Emphasis added.)

31. For the reasons given by Refshauge J in Burow, I agree that the NSW Guideline Judgment provides limited guidance in the ACT. The "default" disqualification periods in the tables to ss 32 and 33 of the RTAD Act should not be treated as applying to the "usual case" and, when a court is considering disqualification, the critical question is not whether there is a sufficient reason to justify reduction of the "default" disqualification period.

32. Assuming that the imposition of a disqualification period is a form of sentence in relation to which the ordinary sentencing purposes apply, the predominant sentencing purpose must be the protection of the public. Other sentencing purposes such as punishment may also be relevant, but will almost always be subservient to the predominant purpose of protecting the public. The central purpose of public protection is critical to understanding the manner in which the ss 32 and 33 discretions should be applied.

33. I note the long title to the RTAD Act which states that it is:

An Act to provide for the detection of people who drive motor vehicles after consuming alcohol or drugs, for offences by those people, and to provide measures for the treatment and rehabilitation of those people.

As counsel for the appellant submitted, the long title can be taken into account for the purposes of interpretation. It makes no reference to the purpose of protection of the public. However, the fact that the long title makes no reference to the legislative purpose of protecting the public does not affect the proposition that the predominant purpose of imposing a disqualification period must be protection of the public.

34. Other purposes for imposing a disqualification period feed into the primary purpose of protection of the public. For example, a drink-driver who has been rehabilitated will presumably pose a limited risk to the public, such that a relatively short disqualification period could be contemplated.

35. The legislature has decided that, for particular offences and offenders, particular automatic periods of disqualification provide a reasonable level of public protection. These are the "default" disqualification periods. However, a sentencing court does not proceed in a vacuum. I agree with Refshauge J that a sentencing court is required to have regard to all relevant factors and then decide upon the appropriate period of disqualification. In doing so, the primary consideration must be protection of the public. The question is: what period of disqualification is necessary or desirable to provide adequate public protection in the circumstances of the particular case? In answering that question, a court may refer to the relevant "default" disqualification period because that period indicates the legislature's view about the disqualification period that would, perhaps in a "usual case", provide adequate public protection. The sentencing court should also consider the impact of disqualification on the offender, but this consideration will generally be secondary to the primary purpose of public protection.

36. In this case, the sentencing magistrate approached the disqualification period in accordance with the approach in Tindall and earlier decisions of Refshauge J. I may have advocated such an approach myself. However, having reflected on the reasons of Refshauge J in Burow, I have concluded that the Tindall approach is incorrect. It follows the NSW Guideline Judgment which, as explained by Refshauge J in Burow, is of very limited assistance in this jurisdiction.

37. Rather than asking what was the appropriate disqualification period to achieve the relevant sentencing purposes (including the primary purpose of protection of the public), in this case the sentencing magistrate asked whether the default disqualification period should be reduced and concluded that there was "no good reason to do so".

38. The appellant has established that there was an error of law and the appellant should be re-sentenced in relation to the disqualification period.

39. The sentencing magistrate referred to relevant objective and subjective matters. The lodging of the appeal in January 2015 stayed the disqualification order and there is no suggestion that the appellant has driven with an unacceptable level of alcohol in his blood since the lodgement of the appeal. This provides some comfort in relation to future conduct and the associated need to protect the public. On the other hand, on three prior occasions, separated by a number of years, the appellant has engaged in drink-driving. In 2001, he was disqualified from driving for 12 months but that did not deter him from driving with a prescribed concentration of alcohol in his blood in 2005, albeit a low level of alcohol.

40. The appellant wants a licence for work purposes, but I agree with the sentencing magistrate that the availability of an interlock device is a consideration which, while not eliminating the punishment associated with a disqualification order, will significantly mitigate it and enable the appellant to work.

41. The appropriate period of disqualification is a period of two years from today.

I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.