Thompson v Steele [2025] ACTSC 187

1. This is an appeal from orders of a magistrate disqualifying the appellant from retaining a driver licence for a period of time. More specifically, the magistrate: (a) convicted the appellant of drive with prescribed drug in oral fluid (CAN 5500/2024), and disqualified the appellant from holding or obtaining a driver licence for a period of six months; and (b) convicted the appellant of an additional charge of drive with prescribed drug in her oral fluid (CAN 6552/2024) and disqualified her from holding or obtaining a driver licence for a period of six months consecutive on the disqualification imposed for CAN 5500/2024.

2. The orders sought in the Notice of Appeal are: (a) that the disqualifications be set aside; and (b) that the court resentence the appellant in respect of her licence disqualifications.

3. The appeal in relation to the second charge was not pressed. That was because the parties, and hence the magistrate, had erroneously proceeded on the basis that the appellant was a first offender in relation to the second in time charge because she had not been convicted of the first charge prior to being sentenced on the second charge. That involved a failure to appreciate the effect of s 4F(2)(b) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act), which provided at both material times that a person will be a repeat offender in relation to the offence if “the person is convicted or found guilty of 1 or more relevant offences concurrently with being convicted or found guilty of the disqualifying offence, and 1 or more of the relevant offences were committed before the disqualifying offence”. The appellant appeared to accept that because she was, according to law, a repeat offender in relation to the second offence, that the six month period of disqualification imposed amounted to the minimum period that the law permitted, and as a consequence, there was either no entitlement to appeal by reason of the terms of s 26 of the RTAD Act, or alternatively, the grounds of appeal in relation to that charge were likely to be rejected having regard to the fact that she was in law a repeat offender who was, or ought to have been, subject to the more significant penalties associated with that status.

The ground of appeal

4. The only ground of appeal that was pressed was: (ii) The learned magistrate erred in her approach to the periods of disqualification in using the "default" period of disqualification as a starting point, rather than sentencing the appellant by a process of instinctive synthesis.

5. In order to assess the merits of this ground of appeal, it is necessary to understand the facts of the case and the approach taken at the sentencing hearing.

Facts

6. The appellant pleaded guilty to two counts of driving with a prescribed drug in her oral fluid. These were contraventions of s 20(1) of the RTAD Act. The two offences occurred on 24 March 2024 and 20 June 2024 respectively.

7. On 24 March 2024 at around 8:10pm, the appellant was driving west on Erindale Drive in Gowrie, ACT. She was pulled over by police. She returned a positive indication for methamphetamine, which was later confirmed by laboratory analysis.

8. On 20 June 2024 at 2:01am, the appellant was again pulled over by police on Were Street in Calwell, ACT. Again, she was found to have methamphetamine in her oral fluid. She told police that she had smoked ice three days previously. Police received a certificate from the ACT Government Analytical Laboratory confirming the presence of methamphetamine in the appellant’s oral fluid. As a result, an immediate suspension notice suspending her licence was issued on 20 July 2024.

9. The appellant was charged with a contravention of s 20(1). Both charges particularised her as being a first offender. As pointed out earlier, that was erroneous in relation to the June offending.

10. The Statement of Facts for the second offence recorded that “[t]he defendant has previously been convicted of driving with a prescribed drug in her oral fluid, if convicted of the current offence the defendant will be a repeat offender.” This paragraph was the subject of representations made on behalf of the appellant to the Director of Public Prosecutions. Those representations had not been responded to when the appellant pleaded guilty on 30 September 2024. The statement was not correct because the appellant had not been convicted or found guilty of the March offence prior to committing the June offence at the time that she was to be sentenced for the June offence. However, as I have pointed out, s 4F of the RTAD Act indicated that she would still be a repeat offender if sentenced for both offences at once.

11. Before the magistrate, seven exhibits were tendered: (a) Exhibit 1: the immediate suspension notice; (b) Exhibit 2: the appellant’s criminal history; (c) Exhibit 3: the Statement of Facts relating to the offending on 20 June 2024; (d) Exhibit 4: the Statement of Facts relating to the offending on 24 March 2024; (e) Exhibit 5: a letter from a doctor, Philip Verghese, identifying that the appellant is a carer for her son, who has a significant brain injury and is significantly vision impaired; (f) Exhibit 6: a certificate under s 41AB of the RTAD Act identifying that a sample taken on 24 March 2024 detected the presence of methamphetamine; (g) Exhibit 7: another certificate under s 41AB indicating that methamphetamine was detected in the sample taken on 20 June 2024.

12. In the course of submissions to the magistrate, counsel for the appellant made the following points: (a) The appellant is a methamphetamine user. (b) She is getting help for her problem. (c) In relation to the first offence, she did not admit whether she had taken drugs on the day, but the description given suggested she was not affected by drugs. (d) In relation to the second offence, “she thought she was okay to drive” and she had not smoked any ice for three days. (e) The appellant went to rehabilitation in 2014, but relapsed when her mother died in 2020. (f) She was in the middle of completing a program with Directions ACT, a drug counselling organisation. (g) She is 48 years old. (h) She is a carer for her eldest son, who is 29 and has an acquired brain injury from a car accident. He is not allowed to drive and relies on his mother to get to appointments, including medical appointments. (i) She also has a 19-year-old son with mental problems, who does not drive and relies on his mother to get him to psychiatric and other appointments. (j) She also shares custody of her 14-year-old son, who needs her to drive him to his activities. (k) She has an extensive criminal history, but her last conviction was 10 years ago.

13. There was then a discussion of the Statement of Facts for the second offence, counsel submitting that she was a first offender for the purposes of both charges.

14. The submissions continued and the following points were made: (a) New penalties had come into force in May 2024 apply, meaning that the minimum period of disqualification is three months, and the default period is six months. (b) The court should impose the minimum periods of disqualification given her family responsibilities and her need for a licence. (c) Section 25(2) of the Human Rights Act 2004 (ACT) reduces the penalty consistent with the legislative change. (d) The offender has the capacity to pay a fine if given time to pay. (e) Under s 69 of the Road Transport (General) Act 1999 (ACT) (RTG Act) the court should make the disqualification partly or completely concurrent given her family circumstances and in order to ensure that the penalty was not a crushing one.

15. Counsel for the Director made the following points: (a) On 24 March, there was a total of either three or four people in the vehicle. (b) Both offences took place late at night. (c) While the appellant did have caring responsibilities, the submissions made on behalf of the appellant in relation to her second child were somewhat vague. (d) Public transport is available in Canberra which would alleviate the difficulties at least in relation to the second child. (e) She opposed complete concurrency of the disqualification period given that the offences occurred on separate occasions and not in one series of offending. (f) It was a “unique circumstance” in relation to the offender being a first-time offender as there was not a conviction at the time of the second offence. (g) The second in time offending occurred after the amendments so “there will be different penalties for each of the offences”. (h) She agreed that the sentence in the second Statement of Facts about the appellant being a repeat offender was incorrect.

16. The magistrate gave her reasons immediately.

17. She identified that the offender was charged as a first-time offender on both counts. As pointed out earlier, that approach was erroneous, but resulted from the approach taken by the parties to the particularisation of the charges and their submissions. She referred to the maximum penalty, saying in relation to the March offending that the maximum fine was $1600, the minimum disqualification period was six months, and the default disqualification period was three years. In relation to the June offending, the maximum fine was $4000 but the offender gets the benefit of the earlier in time maximum of $1600, and she also gets the benefit of the reduction in the disqualification period to a three-month minimum with a default of six months.

18. In relation to the evidence and submissions about the appellant’s personal circumstances, the reasons provide: The court has been told that she is the carer for her 29-year-old son who has a significant brain injury and is significantly vision-impaired. There's evidence about that dated 27 September 2024. However, there's no evidence to support the submission that she also cares for her 19-year-old son who has mental conditions that means he doesn't like to use public transport. The prosecutor submitted it's difficult to accept that without any evidence in support and the court agrees. The offender obtained some minimal evidence about her son, which the submission is he's 29 years old, but not about her other 19-year-old son. It is also submitted that she has a 14-year-old child for which she has shared custody and that child also needs transport, but there wasn't any other explanation about where that child needs transportation to and from, and whether the other parent who shares custody of the 14-year-old could provide that or whether the 14-year-old can catch public transport to wherever it is that the child needs to be transported. There's nothing, on the face of it, other than being a carer for the child who has a significant brain injury and is significantly vision-impaired, as to why the offender particularly needs a licence. There were no submissions about requiring it for work or any other reason.

19. She then referred to the service of the immediate suspension notices.

20. She identified that the most notable subjective factor was a very significant criminal history that the appellant has, involving “dozens of offences dating back many years”. The magistrate noted that the last offending happened over 10 years ago in 2013 and that she did not have any drug driving offences on her record.

21. She referred to the fact that the appellant was taking some voluntary steps to treat a drug addiction. She identified that she did not have any submissions about the appellant’s cultural background or any other physical or mental conditions. The magistrate referred to the fact that there were other passengers in the car and that the second offence occurred after the appellant had been pulled over for the first offence.

22. In relation to the March offending, the magistrate indicated that she would impose a fine of $1000. In relation to the disqualification period, she said: The disqualification period for the March offending is the default disqualification of six months. I don't accept that there is sufficient subjective circumstances to apply the minimum disqualification period.

23. It is this passage which is said to disclose a specific error on the part of the magistrate.

24. In relation to the June offending, she also imposed a $1000 fine. So far as disqualification was concerned, she said: Also for the June offending I impose the default six-month disqualification period, the six months that applied after May and, therefore, applies to March. The March, had it been finalised before the changes to the legislation, the default position would have been three years, and had she been a repeat offender, the default position would have been 12 months, but six months' default disqualification period for March and six months for June are cumulative upon each other with a total of 12 months.

25. Finally, she referred to the fact that the Road Transport Authority would take into account the existence of the immediate suspension. (That was a requirement of s 35 of the RTAD Act.)

Statutory provisions

26. As noted by the parties, the penalty provisions relating to the offences differed as between the March offence and the June offence. As at the March offence, s 20(1) provided that the maximum penalty for a first offender was 10 penalty units ($1,600) and s 34 provided that the automatic period of disqualification was three years, but the court could order a shorter period of disqualification that is at least six months.

27. As at the time of the June offence, s 20(1) provided that the maximum penalty for a first offender was 25 penalty units ($4000) and s 29 provided that the automatic period of disqualification was six months, but the court could order a shorter period of disqualification that is not less than three months.

28. Section 84A of the Legislation Act 2001 (ACT) relevantly provides: (2) If a law increases the maximum or minimum penalty, or the penalty, for an offence, the increase applies only to an offence committed after the law commences. (3) If a law reduces the maximum or minimum penalty, or the penalty, for an offence, the reduction applies to an offence committed before or after the law commences, but does not affect any penalty imposed before the law commences.

29. In her reasons, the magistrate treated the March offending as carrying a maximum penalty of $1600, but the period of disqualification as having been reduced from an automatic period of three years with a minimum of six months down to an automatic period of six months with a minimum of three months. In other words, the appellant got the benefit of the reduction in the disqualification regime. Although the reason for this was not articulated in the magistrate’s reasons, having regard to an earlier exchange in the transcript, it appears to have been on the basis of s 25 of the Human Rights Act to which her Honour was referred.

30. In her reasons, the magistrate identified that, although the maximum penalty was $4000 for the June offending, the appellant “gets the benefit of the earlier in time maximum of 16 hundred” as well as the reduced disqualification periods under the amended law. It is not clear how, in relation to the June offending, the maximum fine would be that specified at the time of the March offending and not the maximum fine applicable at the time of the June offending.

31. In relation to the March offending, her Honour was, subject to one possible qualification, correct in concluding that the appellant got the benefit of the more lenient disqualification regime. However, that was not by reason of s 25 of the Human Rights Act, which has no direct application. Rather, the operation of amended penalty provisions is governed by s 84A of the Legislation Act.

32. The one possible qualification which I contemplated earlier is whether s 84A of the Legislation Act applies by reference to each individual component of a penalty and, hence, allows fines and disqualification periods to be considered separately rather than as a legislative package. As a matter of principle, treating them as a legislative package would appear more appropriate, but that would generate difficult questions as to whether a package of measures involves an increase or reduction in overall penalty. As neither party raised any error on the part of the magistrate in relation to her assessment of the maximum penalty, I do not need to address this issue further other than to note that her Honour received very little assistance from the parties on these issues. So far as the prosecutor was concerned, that was understandable having regard to the fact that she had not expected the matter to be other than a mention on the day when the sentencing in fact occurred.

Consideration

33. The appellant submitted that the magistrate took the wrong approach to determining licence disqualification for the March offence. The submission was as follows: The correct approach is that the court has regard to the circumstances of the offending and imposes a disqualification period that is appropriate to protect the community and punish the offender. That approach was not followed by the sentencing Magistrate, who used the default period of disqualification as a starting point, instead of following a process of instinctive synthesis, having regard to all relevant factors including that the appellant was a first-time drug-driving offender, the long gap since last offence, her efforts at drug rehabilitation and the impact of losing a licence on her family responsibilities.

34. The appellant relies upon the decision of Baker J in Tui v McLucas [2024] ACTSC 164 and her Honour’s discussion of the authorities in that case at [35]-[41]. The conclusion reached by her Honour (in relation to s 33 of the RTAD Act, which then became s 28) was as follows: Accordingly, whilst the “default disqualification period” is not strictly a maximum penalty, and in particular, is not reserved for the most serious examples of the offence, it is not necessary for the Court to be satisfied that there are “good reasons” before imposing a period of disqualification that is less than the default period. Rather, the Court should ask what period of disqualification is appropriate, in particular to meet the need for the protection of the community.

35. Counsel for the appellant submitted that the magistrate erred by adopting an approach which required the appellant to justify a departure from the automatically imposed period, rather than by determining what period of disqualification is necessary or desirable to achieve the relevant sentencing purposes.

36. He also submitted that the magistrate had erred by only taking into account the subjective circumstances of the offending and by failing to consider whether or not, if an order was not made imposing the minimum period of disqualification of three months, some period of disqualification between three and six months should be imposed.

37. In assessing these grounds, it is relevant to note that the magistrate was not referred to the decision in Tui or any of the authorities discussed in it. No submission was made about the proper approach to assessing departures from the automatic period of disqualification. Further, it is necessary to take into account that the ex tempore reasons of a magistrate should not be scrutinised with an eye keenly attuned to the detection of error, but should have regard to the fundamental necessity to explain in appropriate terms the basis for the decision.

38. The magistrate had, earlier in her reasons, referred to the need to deter other people from committing the same or similar offences and protect the community from the appellant because “people driving under the influence of drugs are less safe than people driving sober”. Obviously, those considerations were particularly relevant in circumstances where the appellant was an admitted methamphetamine user. I am not satisfied that the magistrate failed to consider what was the appropriate length of disqualification. There is nothing in her Honour’s reasons that indicated that she had placed some inappropriate burden upon the offender. The reference to the subjective circumstances was because it was those circumstances, insofar as they raised caring responsibilities, which were relied upon in order to countervail the need for protection of the community arising from the commission of the offence and in circumstances where the appellant admitted ongoing methamphetamine use. Plainly, the decision as to whether or not to impose a period of disqualification less than the automatic period involved consideration of both the need for protection of the community, as well as the hardship that would be imposed upon the appellant and her family.

39. In the circumstances of this case, I do not consider that the difference in language reflected in the authorities referred to in Tui is of any significance. The distinction between requiring a “good reason” and deciding what period of disqualification is “appropriate” was not one which would produce any material difference in approach. No error is disclosed by her Honour’s reasons, which adequately responded to the nature of the case and the submissions which had been made to her. For these reasons, the ground of appeal is not made out.

40. I would, however, record a degree of caution in relation to the application of the reasoning in relation to what was s 33 (and is now s 28) of the RTAD Act to the terms of s 30. The language of s 30 is such as to impose an automatic period of disqualification without the requirement for any court order unless the convicting court orders a shorter period. Where the automatic period operates, it is only through the deeming provision in s 26 that an appeal is possible. Because of the terms of s 30(2), a court is required to consider, at least when asked to, whether or not to make an order so as to depart from the automatic period. That will inevitably involve consideration of the circumstances of the case and whether those circumstances make a departure appropriate. Whether that is characterised as being a “good reason” for departure or merely the determination of a different, “appropriate” period of disqualification is not significant. What is significant is that the court is required to actively make a decision to make an order rather than simply allow the statute to operate. A court is inevitably considering whether to depart from the automatic period and not approaching the matter on the basis that the automatic period is merely a maximum penalty, and it is determining by the usual process of instinctive synthesis the length of disqualification as it would an ordinary sentence where both a maximum and minimum penalty are specified.

Orders

41. As the only ground of appeal is not made out, the appeal must be dismissed. I record that, had I found that the ground of appeal was established and then been required to re-exercise the sentencing discretion on the material before the magistrate, I would have determined that the decision that she reached was the correct one and, hence, would have dismissed the appeal in any event.

42. The orders of the Court are: (1) The appeal is dismissed. (2) Each party has liberty to apply within fourteen days for any order required by reason of the operation of the stay pending appeal under s 216 of the Magistrates Court Act 1930 (ACT).

I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 15 May 2025