CRIMINAL LAW - Driving Offences - drink-driving offences - repeat offender

APPEAL - Appeal from the Magistrates Court - sentence manifestly excessive - appeal dismissed

Crimes (Sentencing Procedure) Act 1999 (NSW) s 37 (1)

Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 19, 26, 33

Road Transport (General) Act 1999 (ACT) Div 4.2, s 64 (1)

Newham v Cogle [2012] ACTSC 76

Re Attorney-General's Application (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305

Scott v Wynants [2009] ACTSC 62

Case Title: Anthony John Spalding v Benjamin Tindall

1. The appellant was the driver of a motor vehicle travelling on Northbourne Avenue in Braddon at about 2:10 am on Friday 21 June 2013 when he was stopped by police and required to undergo a roadside breath screening test. The result of that test was positive for alcohol, and the appellant was taken into custody for the purposes of undergoing a breath analysis. At 2:41 am that morning the appellant provided a sample of his breath for breath analysis, which returned a reading of 0.082 grams of alcohol per 210 L of breath. This is a level 3 reading for the purposes of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act).

2. A summons was issued requiring the appellant to appear before the ACT Magistrates Court on 14 August 2013 to be dealt with on a charge contrary to s 19 of the Act alleging that he, as a repeat offender, in the Australian Capital Territory on 21 June 2013, having been the driver of a motor vehicle on the road, did have, within the relevant period, the prescribed concentration of alcohol in his breath being level 3. The appellant was a repeat offender for the purposes of the Act because he had previously been convicted of an offence under s 19 of the Act in 1998. On 14 August 2013 a legal practitioner appeared in the Magistrates Court on behalf of the appellant, and the matter was adjourned to 4 September 2013 for a plea of guilty. It is not clear from the record of the Magistrates Court whether the appellant was also present in person on 14 August 2013, but nothing turns on this fact. On 4 September 2013 the appellant was again represented by a legal practitioner, although I am able to infer that the appellant was also present in person. A plea of guilty was entered and submissions in mitigation of sentence were made on behalf of the appellant. The Chief Magistrate recorded a conviction, fined the appellant $440.00 and disqualified him from holding or obtaining a driver licence for a period of two years commencing that day.

3. The maximum penalty for the offence of which the appellant was convicted is prescribed by s 26 of the Act. At the time of the offence the maximum penalty for a repeat offender was a fine of $1100.00, imprisonment for six months or both. The Act provides, in s 33, for automatic periods of driver licence disqualification for repeat offenders convicted of an offence under s 19, although the Court may impose a shorter or longer disqualification if appropriate, although the Act also provides for minimum periods of disqualification. For a repeat offender convicted of a level 3 offence the automatic disqualification was three years. The minimum disqualification that the Chief Magistrate could impose was six months.

4. It is convenient at this point to set out the provisions of s 33 of the Act:

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.

5. The appellant appeals from the order of the Chief Magistrate disqualifying him from holding or obtaining a licence for a period of two years. The Notice of Appeal dated 1 October 2014 suggested that the appellant would seek to put further evidence before this Court on appeal, although this did not occur. The sole ground of appeal set out in the Notice of Appeal was that the sentence imposed by the Chief Magistrate was manifestly excessive. An allegation that a sentence is manifestly excessive does not raise an allegation of specific error on the part of the sentencing court. Where it is alleged that a sentence is manifestly excessive, the appellant seeks to persuade an appellate court that error may be inferred on the part of the sentencing court by reason of the manifest injustice of the sentence, even though no specific error appears on the record. In spite of this fact, the legal practitioner appearing on behalf of the appellant put the appellant's case, in his written submissions, as follows:

1. The Appellant contends that the learned Magistrate in sentencing approached the automatic or default of disqualification period incorrectly. At page 6 of the transcript of proceedings, Her Honour refers to the default disqualification period of 3 years in her sentencing. Her Honour then refers to reduction in that period by virtue of the guilty plea and further reduction by recognition of the significant gap in offending. It is submitted that Her Honour in sentencing has used the automatic or default period as a starting point and then reduced it, treating the period as if it was the maximum or a tariff.
2. It is submitted that the sentencing of the Appellant in respect to his licence disqualification is an error as identified in Newham v Cogle (2012) (sic) ACTSC 76 and Senderowski v Mothersole [2013] ACTSC 217.

6. In alleging a specific error on the part of the sentencing magistrate, the appellant raised a ground of appeal which was not raised in the Notice of Appeal. The respondent took no issue with the appellant's deviation from the terms of the Notice of Appeal, and accordingly I will deal with the appeal on the basis of the grounds advanced by the appellant during the hearing of the appeal.

7. After hearing submissions from the legal practitioner representing the appellant and the representative of the Director of Public Prosecutions, the Chief Magistrate gave her decision:

Could you stand please, Mr Tindall. Mr Tindall, you've entered a plea of guilty on an earlier occasion in relation to this offence and the penalty that potentially attaches to it has just been detailed.

The statement of facts are that you were driving back into town having already consumed alcohol with the purpose of consuming more. Your reading at the time was 0.082, which brings you within the level 3 range. You were a repeat offender on that occasion because of the conviction that you had back in 1998.

You had one passenger with you at the time. Since this time, you've undertaken the Karralika Reverse Course so hopefully you are now better educated as to the risks that are associated with drinking and driving. You have 2 references and although I contribute little weight to their comments that this is out of character for you because they made no reference to the prior conviction, I can accept from them that generally you are considered a person of good character otherwise.

You have, as I say, indicated your remorse, both by your early plea of guilty, and those people who've written on your behalf recognise that you've expressed remorse to them.

Now, the default disqualification on this occasion is three years and it seems to me that there is some scope for a reduction in that period of disqualification by virtue of your guilty plea and perhaps some scope for limited further reduction by recognition of the fact of the long period of time since your last conviction although, of course, you are still a repeat offender for the purpose of the legislation. Beyond that on the evidence before me, it would be speculative as to any particular need for a driving licence. Obviously if one has a driving licence, there are more job opportunities than if one does not but there is no particular employment that you are currently engaged in or necessarily about to become engaged in which do require you to have a licence and therefore I provide no further discount in light of those employment factors.

I do take into account that whilst you're looking for work, you're currently in receipt of Centrelink benefits. All of that said, I therefore deal with the matter in the following way. You are convicted. You will be disqualified from holding or obtaining a driving licence for a period of two years from today. You'll be fined $440...

8. The effect of s 33 of the Act is to set an automatic disqualification period for offences under s 19 by repeat offenders by reference to the level of alcohol in the blood or breath of a driver of a motor vehicle as revealed by the breath analysis prescribed under the Act. Another effect of s 33 is to provide a mandatory penalty to the extent that a court must impose a minimum disqualification on a person convicted of an offence under s 19, the length of that minimum disqualification depending upon the level of alcohol in the blood or breath of the driver as revealed by the breath analysis. The automatic disqualification provided by s 33 is not the maximum disqualification which a court may impose for a relevant offence under s 19, as s 64 (1) of the Road Transport (General) Act 1999 (ACT) permits a court to disqualify such an offender from holding or obtaining a driver licence for a period exceeding the period of the automatic disqualification provided by s 33 of the Act.

9. The provisions of s 33 of the Act enable the sentencing court to impose a "shorter period of disqualification" than the automatic period of disqualification, so long as that shorter period of disqualification is not less than the mandatory minimum disqualification for the particular offence. In Newham v Cogle [2012] ACTSC 76, Refshauge J considered the approach to be taken by a sentencing court to the operation of s 33:

1. It seems to me that her Honour also appeared to approach the automatic disqualification period incorrectly. It is neither a tariff (that is, a sentence standard: R v Sumner [2007] SASC 376 at [78]) nor a maximum (Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]). The default period can be reduced, to a statutory minimum, for "sufficient and appropriate reason": Guideline Judgment at 336; [127]. It is inevitable that there will be hardship, but it must be proportionate to the offence and the penalty for it and the need to protect the community. It can take into account various factors, including the nature of the offender's employment, the absence of viable alternative transport and sickness or infirmity of the offender or another: Guideline Judgment at 340; [146]. As an example, see R v Bennett at [26].
2. To start from the automatic or default period and then reduce it as if a maximum or a tariff is, in my view, an error. A sentencer needs to identify whether there is a sufficient and appropriate reason to reduce the period and, if so, to determine what period, not less than the statutory minimum, is necessary to penalise the offender and protect the public. That the learned sentencing Magistrate did not do and, in my view, her Honour thereby came to a manifestly excessive period.

10. The Guideline Judgment referred to in this extract is Re Attorney-General's Application (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 (the Guideline Judgment). Pursuant to s 37 (1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Attorney-General for the state of New South Wales applied for a guideline judgment with reference to the offence of high range prescribed concentration of alcohol. A high range offence is one where the offender has a concentration of 0.15 grams or more of alcohol in 100.00 millilitres of blood, and as such is equivalent to a level 4 offence in the Australian Capital Territory. The legislative scheme for punishment of drink-driving offences in NSW is of similar effect to that in the ACT, with penalties being set on a sliding scale depending on the level of alcohol detected in an analysis of the breath or blood of a driver. The NSW legislation also provides for offenders to suffer automatic periods of disqualification from holding or obtaining a driver licence, the automatic period varying depending on the level of the offence, although the court may impose a lesser period of disqualification so long as that lesser period is not less than specified minimum periods.

11. One of the reasons for the application for the Guideline Judgment, as acknowledged in the judgment of Howie J, was the fact that there was evidence that magistrates were routinely reducing the automatic periods of disqualification when sentencing high range drink-driving offenders. There is some evidence that this is also the case in the ACT. In Scott v Wynants [2009] ACTSC 62, Higgins CJ considered an appeal in which it was alleged that a disqualification period of four years for a repeat offender with a level 4 reading was manifestly excessive. The automatic disqualification period was five years. In the course of his reasons Higgins CJ referred to "a statistical analysis of previous matters of a like kind" in the ACT Magistrates Court which revealed "a routine reduction of the default period from five years to between 18 months and 24 months". I pause at this juncture to observe that, while it is quite clear from his reasons that Higgins CJ was aware that the automatic disqualification period was not to be treated as a maximum penalty, his Honour used the same language ("a... reduction of the default period") that the appellant complains was an indication of error in the present case. I will return to this issue in due course. Similar language was employed by Refshauge J in Newham v Cogle: see [9] above.

12. If there is a "routine" deviation by magistrates from the automatic disqualification periods provided by the Act, this fact suggests error on the part of the sentencing magistrates. The correct approach, with respect, is that set out in the judgment of Howie J in the Guideline Judgment at [126] to [127]:

It should be noted that the automatic period of disqualification prescribed for a particular offence is not to be considered as if it were the maximum period of disqualification for that offence. The automatic period is merely the default period that operates on conviction unless some other order is made: that is in the usual case in which there is no need to vary the period one way or the other...

It appears to me that courts are too ready to reduce the automatic period and to choose the minimum disqualification period as the alternative. The failure of the courts to give sufficient regard to the automatic disqualification period prescribed by Parliament is indicated by a finding that in only 11 per cent of cases was the offender disqualified for as long as 2 years and 14 per cent for as long as 3 years... There should be sufficient and appropriate reasons for reducing the automatic period that are capable of being expressed by the court before such a step is taken. Those reasons should take into account the scheme of the Act and the significance of Parliament's view that the automatic period is the period of disqualification to apply in the usual case.

[citations omitted]

13. The Guideline Judgment promulgated by the NSW Court of Criminal Appeal provides, at [146], with respect to the application of automatic disqualification periods:

(2) In an ordinary case of an offence of high range PCA:

...

(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification;

(iv) a good reason under (iii) may include:

(a) the nature of the offender's employment;

(b) the absence of any viable alternative transport;

(c) sickness or infirmity of the offender or another person.

14. The ordinary, or usual, case of high range offending for the purposes of the NSW legislation was described by Howie J as one where:

(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;

(ii) the offender was detected by random breath test;

(iii) the offender has prior good character;

(iv) the offender has nil, or a minor, traffic record;

(v) the offender's licence was suspended on detection;

(vi) the offender pleaded guilty;

(vii) there is little or no risk of reoffending; and

(viii) the offender will be significantly inconvenienced by loss of licence.

15. It is not possible to equate this description of a usual case of high range offending to a usual offence of an offence under s 19 of the Act as a repeat offender. Some adaptation is required. In describing an ordinary case of high range offending, Howie J was obviously considering a first offender. A repeat offender would not usually be able to claim prior good character or no prior criminal history. A usual case for a repeat offender would involve a single prior conviction such as to bring the offender within the definition of a repeat offender in the Act. In addition, an "immediate suspension" of an offender's driver licence will only apply in some cases: see Division 4.2 Road Transport (General) Act 1999 (ACT). Having acknowledged the need to adapt the usual case as set out in the Guideline Judgment to conform to the nature of a repeat offence, it seems clear to me that a usual case for a repeat offence under s 19 of the Act will involve characteristics outlined in (i), (ii), (vi), (vii) and (viii) (above).

16. Whilst the Guideline Judgment is directed towards high range offences under the NSW legislation, the equivalent of level 4 offences in this Territory, I consider the statements made by Howie J with respect to the application of, and deviation from, automatic periods of disqualification to have equal application to all levels of drink-driving offences. The automatic disqualification period is that which the legislature intended to apply in the usual case. Before a disqualification period less than the automatic disqualification is imposed it is incumbent on an offender to demonstrate that his or her case differs from the usual case, such as where the disqualification will create a degree of hardship for the offender or their family which exceeds that which may be anticipated in the usual case.

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. In my opinion, the Chief Magistrate was in error in determining that the appellant's plea of guilty justified a departure from the automatic disqualification period. A feature of the usual case is that the offender pleads guilty. The other reason advanced by the Chief Magistrate for departure from the automatic disqualification period, being the period of time between the appellant's first offence and the offence before her, was a legitimate reason for the Chief Magistrate to exercise her discretion to reduce the automatic disqualification period as she did.

18. The language used by the Chief Magistrate in speaking of "some scope for reduction" of the automatic disqualification period does not lead to a conclusion that her Honour was using the automatic disqualification period as a maximum penalty. As Higgins CJ demonstrated in Scott v Wynants, there is nothing inappropriate about referring to a reduction of the automatic period, because this is, as a matter of practicality, what is occurring. The Chief Magistrate was also entitled to take into account the automatic disqualification as a yard stick in assessing the appropriate disqualification period.

19. Although the appellant did not address me on the proposition that the disqualification imposed by the Chief Magistrate was manifestly excessive, I make it clear that I do not consider the appellant has demonstrated that to be the case.

20. The appeal will be dismissed. The orders of the Magistrates Court of 4 September 2013 will be confirmed. I will hear from the parties whether any consequential orders need to be made concerning the commencement of the disqualification period, and the time to pay the fine, if that has not already been paid.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.