Sutherland v Luchetti [2013] ACTSC 196

2. The defendant was the driver of the vehicle. He apparently was cooperative with police. He provided his licence and underwent the screening test without demur. The only affect that was noticed that indicated his intoxication, was a moderate odour of intoxicating liquor and watery eyes. It was not suggested he was staggering or walking in a manner that indicated intoxication or that his reflexes were adversely affected. However, the result of the test was 0.081 grams of alcohol per 210 litres of breath, which is just over the third level point under the legislation. The licence that the defendant possessed subjected him to a blood alcohol limit of 0.050 grams of alcohol per 210 litres of breath. This is the second level point under the legislation, with the first level being the presence of alcohol, though less than .05.

3. There was no indication of other road users present at the time of offence. Thus, it is fair to say that the circumstances of the offending behaviour were at a relatively low level of objective seriousness. However, her Honour put it at between the mid and lower range of objective seriousness for a level three. I am not quite sure what her Honour means by that, but in any event, mitigating factors were put before her. They included the age and experience of the appellant, the fact that he had completed an alcohol and drug awareness course; certainly that was taken into account as well as his remorse and early plea.

4. His good character was also put forward, although I do not understand her Honour's reference to the employer's reference. It does appear, for some reason, that her Honour has discounted the factor of his good character. If so, there was no reason to do that. Importantly, he had been driving for 24 years without any prior record and the distance being travelled was a short one. It was not just a matter of good character, arising from there being no adverse findings against him. His employer and neighbour both gave positively glowing references attesting positively to his good character.

5. Now, in those circumstances you would think that Mr Sutherland would be an appropriate candidate for a non conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). and I find myself a little surprised that that was not the result. One has to ask why not? First of all, if her Honour was saying that you need evidence to require the discretion under s 17 to be exercised, I find it difficult to understand what more could be put to justify the exercise of the discretion not to convict. I simply cannot understand what more there could be.

6. Certainly, there may be other cases where the decision to exercise that discretion is more compelling, but the circumstances here are certainly not such as to make it unreasonable or, indeed, even surprising, if the discretion had been exercised in favour of Mr Sutherland.

7. The other matter as I have mentioned above, is her Honour's reference to the reference given by Mr Sutherland's employer, Mr Margarita. I cannot see why there should be any reservation expressed about that. Furthermore, the manner of driving by Mr Sutherland was not really explored; it did not appear that he was driving over the speed limit and whether there was any apparent lack of control of the vehicle.

8. It appears from the brief outline of facts that attention was drawn to the vehicle, one, because it was the only other vehicle on the road and two, it took the corner at a speed which was regarded as above that at which normally it would be taken. This is no suggestion that the vehicle lost traction, swerved or was otherwise being driven aberrantly. If there had been, you would have expected that to be mentioned, and it was not. So, I am not quite sure again why her Honour placed so much weight on it, as she appears to have done.

9. The next matter, was her reference to, in effect, there being no particular reason why the appellant needed to be consuming intoxicating liquor. That is summarising it, but it certainly does not seem to me to be a relevant matter, unless there was some defence raised as to coercion or surprise, in terms of alcohol. Sometimes it might be raised, but in most cases it is not. In most cases the person who is before the court has been voluntarily consuming intoxicating liquor and choosing to get into a motor vehicle.

10. There was nothing said in this case about whether the result, at 0.081, was a result which Mr Sutherland expected or did not expect. It is simply neutral on that point. Thus I think there are a couple of matters on which her Honour appears to have placed undue emphasis, particularly in the manner of driving and the fact that there was consumption of alcohol. If there had not been consumption of alcohol, plainly there would be no offence, so that hardly takes it out of the ordinary. Hence in that case, and in those circumstances, there does seem to be a degree of error in Her Honour's reasoning.

11. In any event, it does seem to me that there is nothing more to do or say in circumstances where the question of a s 17 order is required, or is to be given. It is not something which is so exceptional that it ought only to be granted in a case where, in effect, the appellant makes out some sort of positive case for it. Certainly, there has to be evidence that would enliven the discretion. These factors include, "the character, antecedents, age, health, mental condition", and those factors all favour the appellant being granted such an order. The seriousness of the offence, in terms of the relative seriousness of such offending was also towards the lower end of the scale.

12. In relation to extenuating circumstances, I suppose it could be said that there being very few other road users if any around at 3.25 am in the morning may well be an extenuating circumstance. The other matters that are relevant are the fact that there was no danger (actual danger) to any other road user, the fact that the appellant did not appear to be adversely affected to any discernable extent. In those circumstances, I would have thought that to deny the appellant the benefit of s 17 would be, in itself, an excessive reaction to the circumstances of the offending.

13. In short, I think the appeal should be upheld and an order under s 17 be substituted for the orders Her Honour made. I would think that it would be appropriate to impose a good behaviour order in matters of this kind. That is usually regarded as something which is a good precaution, at any rate, if not something that recognises the nature of the offending behaviour.

14. I would substitute, for the sentence her Honour imposed, a nonconviction order, but direct that the appellant enter into a good behaviour order under s 13 of the Crimes (Sentencing) Act 2005 (ACT) for a period of 12 months from today, being the date upon which the substituted sentence takes effect.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Respondent: ACT Director of Public Prosecutions