2. The finding that the appellant is guilty of the offence under s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) be confirmed.

3. The conviction and sentence entered in the Magistrates Court on 8 April 2014 be set aside.

4. In lieu, Tegan Vavoulas is required 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 from 29 July 2014.

APPEAL - In General and Right of Appeal - Appeal against sentence - Whether sentence manifestly excessive

Crimes Act 1914 (Cth), s 19B

Crimes (Sentencing) Act 2005 (ACT), ss 17, 33(1)(r), Ch 8A

Crimes (Sentence Administration) Act 2005 (ACT), s 17

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

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

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 13E, 20, 34

Balthazaar v The Queen [2012] ACTCA 26

Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257

Commissioner of Taxation v Baffsky (2001) 182 ALR 92

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

Higgs v The Queen [1999] FCA 1562

Jones v Morley (1981) 29 SASR 57

Kent v Arley [2007] ACTSC 66

Lukatela v Apostoloff [2010] ACTSC 74

Roseby v Harman [2014] ACTSC 125

R v Gordon (1994) 71 A Crim R 459

R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451

R v Ingrassia (1997) 41 NSWLR 447

R v Nguyen [2002] NSWCCA 183

Re Stubbs [1947] NSWStRp 12; (1947) 47 SR (NSW) 329

Stark v Plant [2010] WASCA 74

Sutherland v Luchetti [2013] ACTSC 196

The Queen v CV [2013] ACTCA 22

The Queen v Eisenach [2011] ACTCA 2

Thomeloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60

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

Judicial Commission, "Common Offences in the NSW Local Court: 2010" (2012) 40 Sentencing Trends and Issues

1. On 21 December 2013, police conducting a mobile patrol in Harrison in the ACT at about 10:53 pm stopped a motor vehicle being driven by Tegan Jacoba Vavoulas, the appellant.

2. There is no evidence as to why the police stopped the motor vehicle.

3. Ms Vavoulas was required to undergo an alcohol screening test, the result of which was negative, but also a drug screening test. The drug screening resulted in a positive indication to a prescribed drug and at Belconnen Police Station she undertook an Oral Fluid Analysis under s 13E of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). That test proved positive to a prescribed drug and Ms Vavoulas admitted to police that she had consumed both marijuana and methamphetamine the previous night and some marijuana early in the morning.

4. Laboratory analysis of the oral fluid sample confirmed the presence of two prescribed drugs, namely methamphetamine and tetrahydrocannabinol, confirming her admission.

5. Ms Vavoulas was charged with an offence under s 20 of the Alcohol and Drugs Act and a summons was issued to her for that offence, returnable on 18 March 2014.

6. The proceedings were then adjourned to 8 April 2014 when Ms Vavoulas appeared and entered a plea of guilty.

7. After hearing submissions, the Magistrate convicted Ms Vavoulas and fined her $500. He disqualified her from holding or obtaining a driver licence for six months.

8. Ms Vavoulas has now appealed against the sentence.

9. Part 3.10 of the Magistrates Court Act 1930 (ACT) confers jurisdiction on this Court to hear appeals from the Magistrates Court, including appeals against sentences imposed by it, and Div 3.10.2 regulates those appeals.

10. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles applicable to such appeals. They may be summarised as follows.

11. 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. 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.

12. Specific errors may be errors of law, errors of fact, taking account of relevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error, that the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allowing the appeal and reimposing the same sentence. 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.

(a) His Honour erred in principle in declining to make a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).

(b) His Honour erred in his assessment of the objective seriousness of the offence.

(c) His Honour erred in failing to place sufficient weight on the appellant's subjective features.

(d) The sentence is manifestly excessive.

15. Ground (c) can only be a particular of ground (d) and I shall treat it as such. See The Queen v Eisenach [2011] ACTCA 2 at [43]. Whether ground (b) is such a particular is not so clear, but it is convenient to deal with it under ground (d) also.

16. The essential facts of the offence have been set out above (at [0]-[4]). I add that there was no explanation as to why police stopped Ms Vavoulas; there was no reference in the Statement of Facts to any particular manner of her driving that drew her car to police attention. Mr S McLaughlin, who appeared ably for the respondent, did not suggest there was any such reason. I proceed on that basis.

17. When intercepted by police, Ms Vavoulas produced her licence. She held a Provisional C Class Driver Licence.

18. She explained to police after the drug analysis showed a positive indication to a prescribed drug that she had "had a few bongs" before going out on Friday night and had then taken some speed early on Saturday morning when she and her party had returned from Civic. She said that she later had a few bongs between 10:30 am and midday on Saturday morning.

20. She is currently employed as a Learning Support Assistant at a local school, providing classroom support to students with a range of diverse, challenging needs. She is also a casual member of a lighting and sound hire company, assisting with the setting up of productions and concerts and packing up after them.

21. She has no history of significant drug taking although she had experimented with marijuana on a handful of occasions in Years 10 and 11.

22. Ms Vavoulas' father died when she was five years old. This imposed much stress on her family though they have managed to overcome it and provide a happy family environment.

24. She has been active and played sport regularly until recently, when her employment hours meant that she had to stop.

26. In submissions to the learned Magistrate on sentencing, Ms Vavoulas' counsel explained the circumstances of the offence as follows:

My instructions are [Ms Vavoulas] had been at a 21st birthday party the previous evening. The party were going out. My client was not all that keen to go but decided to go. There was [sic] drugs. There were drugs being used and taken at the party.

Ordinarily, Ms Vavoulas instructs she is not someone who even drinks alcohol, however, she succumbed to those friends and partook in that drug taking. She instructs me that they were only fairly small quantities. At that time and, really, not until later on did she consider the possible ramifications of her behaviour in respect of her driving, given that she certainly was not intended [sic] to drive that night or, indeed, until later that day.

She instructs me that they got home at about 5.00 am from being out in Civic and it's from there that they continued to effectively pass the bong around and then she was involved in that. Her only real explanation for that is she was very naive. She did not want to be excluded from that but accepts in hindsight that that was very foolish and very poor judgement on her behalf.

She instructs that she slept for the majority of the day until she woke up later that evening a friend of hers needed to retrieve her car from the previous evening and she did not think twice about that. She offered the friend a lift and it was then that she was stopped by police. She tells me that she had not consumed any alcohol. She had eaten. She had been asleep. She simply did not turn her mind to the fact that those drugs may still be in her system and that is something that she now knows, having had the benefit of the course she has undertaken and, certainly, the benefit of hindsight. It was just very naive of her and very foolish.

27. Four references for Ms Vavoulas were tendered on sentence. Two were from her employers or their representatives. All expressed the view that the offence was out of character and that they were surprised at the commission of the offence. She acknowledged to them the stupidity and criminality of the offence and expressed significant remorse.

28. It was obvious to them that she was embarrassed and ashamed of the offence. Her employers referred to the difficulty that a conviction and consequent licence disqualification would have for her employment.

29. She was described as "reliable, hard-working and enthusiastic". She is a team player and displays maturity. She was described as "caring, diligent" and her work with children with special needs, such as those with diagnoses of anxiety, learning disabilities and autism, was significantly praised. Examples of her voluntarily working over and above her required hours and duties were described and her work with the students was said to have demonstrated "patience, perseverance and fair-mindedness when in difficult situations". She was described by a close family friend, who had known her for eighteen years, as "responsible" and "one of the first to help someone out and [be] considerate to others".

30. It is clear from the references that she provided much support to the children with disabilities with whom she works and that she was appreciated by them.

31. The references from her employers state that a conviction and loss of licence will mean that she will lose both jobs, though for different reasons. This was not challenged by the prosecution at the sentencing hearing.

32. Counsel for Ms Vavoulas submitted that, in the circumstances, a non-conviction order under s 17 of the Sentencing Act, was appropriate. It was submitted that the impact on her employment and her career and ambitions would be disproportionate as a consequence for the actions.

33. At the end of the submission by Ms Vavoulas' counsel, the following exchange took place:

HIS HONOUR: Do you wish to be heard, Mr Sweeney?

MR SWEENEY: Only if the court is considering the application of section 17, your Honour.

HIS HONOUR: I will hear from you.

35. It seems that his Honour must have, at least, been contemplating making such an order on the basis of what he had so far heard.

36. Prosecution counsel then submitted that, while her character was good, there were no particular considerations as to her mental or physical health and no extenuating circumstances under which the offence was committed.

37. He referred, so far as the seriousness of the offence was concerned, to what he submitted were aggravating factors, namely the fact that there were two passengers and that the drug was not merely cannabis but also amphetamines. He also submitted that there was not an extensive period of time prior to the last of her drug taking; her last drug taking was recorded to be at or before midday and the driving at 10:53 pm that night.

38. The reference to the period between drug-taking and driving not being "extensive", I was informed, was, apparently, because in many cases drugs are detected in drivers days after they have been taken, when a driver may reasonably consider that the effects of the drugs would have been removed from his or her system.

39. Whether a person who had not consumed drugs for more than ten hours could reasonably think that the effect of the drugs may have adequately abated is not clear to me, but I could not discount it. It does not appear, however, that Ms Vavoulas gave this any thought.

40. The Prosecution referred to the fact that, while Ms Vavoulas avoided drinking alcohol, she did not turn her mind to drugs and the effects of that on driving.

The legislation is intended to stop people driving with drugs. It is that straightforward and this is exactly what this young lady has done. She has done it with two passengers aboard. She has done it within 11 hours after last taking drugs - a drug-taking which occurred from the Friday evening through to the Saturday midday. Your Honour, I would submit that section 17 would not achieve the sentencing purpose and would not be appropriate in this instance.

42. The maximum penalty for the offence is a fine of $1,400 and a default disqualification from holding or obtaining a driver licence for three years reducible to six months.

43. The learned Magistrate then imposed sentence. His remarks are as follows:

Ms Vavoulas, you have pleaded guilty to a single offence of driving with a prescribed drug in your oral fluid.

Mr Maher has made an application that you be dealt with under section 17 without recording a conviction. Dealing with somebody under section 17 is an exceptional outcome. The ordinary course of events when somebody pleads guilty to an offence where they are found guilty of an offence what follows is a conviction. What follows is a conviction and then a sentence is imposed.

The legislation does, however, permit in exceptional circumstances for a person to be dealt with, even though the offence is proved without recording a conviction. Great weight is placed in your case on the fact that you are a young woman, that you have otherwise good character but that there will be significant consequences if a conviction is recorded, in particular, significant consequences in relation to your employment.

That has to be balanced against a range of other things, including as Mr Sweeney points out the purpose of the legislation and the seriousness of your offending conduct.

In your particular case, I think it is an aggravating factor that the testing revealed the presence of both cannabis and methamphetamine. It is an aggravating factor that there were two passengers in the vehicle. On your own admission you had smoked a few bongs on the Friday night. You had used speed sometime between 4.30 and 5.00 am on the Saturday morning and that you had then smoked a few more bongs sometime between 10.30 am and midday on the Saturday.

Those circumstances make this offending serious offending in my assessment. Whilst I acknowledge that there will be significant consequences for you for the recording of a conviction the conclusion I reach is that the material before me is not sufficiently exceptional to justify the exercise of the discretion not to record a conviction.

I do take into account the fact that you have entered an early plea of guilty. I take into account the fact that you are not otherwise recorded and I take into account the fact that there are likely to be significant consequences for you of the record of a conviction.

In all the circumstances you are convicted. I impose a fine in an amount of $500.00 and allow two months to pay and you are disqualified from holding or obtaining a driver's licence for the minimum disqualification period of six months.

44. I turn first to the question of the non-conviction order.

45. I have recently set out some principles relating to orders under s 17 of the Crimes (Sentencing) Act, namely non-conviction orders, recently in Roseby v Harman [2014] ACTSC 125 at [39]- [49]. I rely on what I there said.

46. In that case, the learned Magistrate declined to make a non-conviction order commenting that there was "nothing particularly remarkable" in the circumstances.

47. I held that this was a gloss on the legislation and continued at [81]-[82], [85]:

... All that is required is that one or more of the specified factors provide a sufficient reason for a reasonable person to find that it would be appropriate to make such an order.

A sentencing discretion requires a balancing of all the relevant factors so as to show that the discretion to make a non-conviction order is appropriately exercised ...

Nevertheless, neither singly nor in combination are the circumstances required to be remarkable; the court must simply address the relevant factors and determine whether they led to the courts view that the discretion should be exercised in the particular circumstances.

48. Mr McLaughlin submitted that his Honour was correct to find that there had to be exceptional circumstances before a non-conviction order could be made. He referred to what the Court of Appeal (WA) said in Stark v Plant [2010] WASCA 74 at [18] where McLure P, with whom Owen and Buss JA agreed, said of the non-conviction order permitted under s 19B of the Crimes Act 1914 (Cth)

The circumstances in which it is appropriate to invoke s 19B have been described as rare, exceptional, and special or singular.

49. Nevertheless, in Commissioner of Taxation v Baffsky (2001) 182 ALR 92 (Baffsky), the NSW Court of Criminal Appeal disagreed with that assessment and said there was no such implication unless expressed in the legislation. Spigelman CJ, with whom, Simpson J and Einfeld AJ agreed, said (at 105; [77])

I do not see any warrant for replacing the statutory formulation with terminology as broad as 'exceptional circumstances' in a particular sphere of regulation. This conclusion does not, however, cast any doubt on the importance of giving consideration to issues of seriousness, prevalence, difficulties of detection etc ...

50. That decision has been followed on many occasions and, in my view, correctly identifies that there is no requirement that circumstances be exceptional before they amount to a sufficient reason to justify the exercise of the power to make a non-conviction order.

51. It is true that the recording of a conviction is the usual result of a guilty verdict or a plea of guilty to an offence charged: Higgs v The Queen [1999] FCA 1562 at [3]. See also Lukatela v Apostoloff [2010] ACTSC 74 at [19] and Balthazaar v The Queen [2012] ACTCA 26 at [53].

52. In any event, whether a non-conviction order under s 17 of the Sentencing Act can only be made in rare and exceptional circumstances is not necessarily to be determined from the approach of the courts to a different provision, though clearly one with many similarities.

53. There are three significant differences in my view between s 17 of the Sentencing Act and s 19B of the Crimes Act:

• the former refers to the criterion of "the seriousness of the offence", whereas the latter refers to "the extent (if any) to which the offence is of a trivial nature";
• the former permits the court to have regard to anything else it considers appropriate whereas the former has a limited list of matters to which the court must have regard; and
• the latter requires a finding of the court that it is "inexpedient" to inflict any or any other than nominal punishment or release the offender on probation before proceeding under the section, but the former only requires a consideration of whether it is appropriate to inflict any (other than nominal) punishment where the court proposes to dismiss the charge and not where it proposes to make a good behaviour order.

54. As to the first issue, to focus on seriousness rather than triviality puts a different complexion on the sentencing exercise.

55. As to the second issue, Baffsky (at 99; [27]) followed Jones v Morley (1981) 29 SASR 57, which held that the range of circumstances, especially under the heading of "antecedents", is very wide, but it did put some limits on what could be taken into account. For example, it held that there were limits on the extent to which the sentence may impact on persons other than the offender. Such a factor would, however, be a matter that could be considered in all its fullness under s 17(4) of the Sentencing Act. This is reinforced by the comment by the New South Wales Court of Criminal Appeal in Thomeloe v Filipowski [2001] NSWCCA 213; (2001) 52 NSWLR 60 when considering the similar provision in that State, namely s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which has, in s 10(3)(d), a similar provision to s 17(4) of the Sentencing Act not found in s 14B of the Crimes Act. Spigelman CJ, with whom Hulme and Howie JJ agreed, said (at 73; [155]):

I have not found it easy to determine whether a factor which is not relevant on sentencing for the charge, can nevertheless be a 'proper' matter to be considered when exercising the discretion under s 10. On balance, I have concluded that s 10 does have a scope and purpose which extends beyond the elements of the offence of the 'relevant charge'. I refer in particular to the effects of the act of recording a conviction, to which Gleeson CJ referred in R v Ingrassia.

56. The latter reference was to the comment of Gleeson CJ in R v Ingrassia (1997) 41 NSWLR 447 at 449 that

[t]he legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court.

57. I will deal with the third issue below (at [84]-[85]).

58. Matters that have been taken into account, even under s 19B of the Crimes Act, include business hardship consequent upon the loss of a driver licence: Re Stubbs [1947] NSWStRp 12; (1947) 47 SR (NSW) 329.

59. I also note that the NSW Court of Criminal Appeal referred in R v Nguyen [2002] NSWCCA 183 at [50], in the context of s 10 of the Crimes (Sentencing Procedure Act, to

the willingness of the legislature, and thus the community, to provide certain first offenders, in certain circumstances, with a second chance to maintain a reputation of good character.

60. This approach has been reflected in this Court's approach to such orders. Thus, in Kent v Arley [2007] ACTSC 66 at [9], Connolly J said

It seems to me that regardless of the appellant's immigration circumstances, she is a person really for whom the section was designed. It is, in a sense, Parliament's clear indication that young people sometimes make a mistake and the community says, in a sense, people are entitled to one mistake, and to put that problem behind them and not record a conviction, and the appellant, it seems to me, is a person who otherwise presents as a person who is going to go on and make something of her life and be a valuable member of this community, as a citizen, as a permanent resident, engaging in worthwhile activities_._

61. I also note that the Judicial Commission, in its article "Common Offences in the NSW Local Court: 2010" in (2012) 40 Sentencing Trends and Issues at p 9 showed that in 42.3% of low-range cases involving a charge of driving with a prescribed concentration of alcohol in breath or blood (PCA cases) an order under s 10 of the Crimes (Sentencing Procedures) Act was made, and was made in 14.4% of mid-range PCA cases, though only in 1.6% of high-range PCA cases. These statistics seemed relatively stable over time as earlier editions of the publication shows. This does not seem to me to show a threshold of exceptional circumstances.

62. In my view, the legislature has not imposed, nor should the courts, a threshold of exceptional circumstances on the making of a non-conviction order under s 17 of the Sentencing Act. It appears to me that, in so imposing that threshold, the learned Magistrate read into the legislation a test that is not there.

63. That is not to say that a non-conviction order will be the ordinary response to a finding of guilt for an offence charged. That is inconsistent with what was said in cases such as Higgs v The Queen but also the intent of the legislation.

64. Nevertheless, the court is to take into account all the relevant circumstances, and if there is, in the words of Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 276, a "sufficient reason" for departing from the ordinary consequence of a finding of guilt, then the court is authorised to make an order under s 17 of the Sentencing Act.

65. I note that this approach accords with what Higgins CJ said in Sutherland v Luchetti [2013] ACTSC 196 at [11].

66. In my view, the learned Magistrate erred in setting a test for the factors set in s 17(3) and (4) of the Sentencing Act that they be exceptional and which was not in accord with principle.

67. Ms Vavoulas also challenged the sentence as manifestly excessive. There were three aspects of this that need to be considered; whether the objective seriousness of the offence was correctly identified by the learned Magistrate, whether the penalty was too high and whether the consequences were excessive.

68. Whether a sentence is manifestly excessive is a conclusion that the court draws from all the facts and circumstances. I have set out in Hawkins v Hawkins (2009) 3 ACTLR 210 at 218-21; [39]-[54] the approach to this ground of appeal. I apply it to this case.

69. The learned Magistrate identified two aggravating factors: that there were two passengers in the car and that there was evidence of two drugs (though, unfortunately, there was no evidence as to whether this increased the impairment likely to be suffered by Ms Vavoulas). His Honour then concluded that this made "this offending serious offending".

70. Viewed from the perspective of two aggravating factors, this assessment has a seductive plausibility. Seriousness is, however, a comparative and the level of seriousness must be viewed against the spectrum of relevant circumstances.

71. In this case, there were relevant matters that are part of that spectrum, without going to an extreme of imagining the worst possible scenario. Thus, it seems to me to be relevant that significant other aggravating factors were not present, such as

1. that there was no improper manner of driving and, for example, no accident;
2. that there was no evidence of other traffic on the road at the time; and

1. that the number of drugs detected was two rather than more as is often found in urinalyses that come before the courts.

72. Thus, while the two aggravating factors mentioned did make the offence more serious than had they been absent, these other absent matters as part of the spectrum of the offence meant that the offence could not be said to be in the mid or upper range of seriousness.

73. While this may not be a specific error, it does contribute to an assessment of the appropriate penalty and whether the imposed penalty was manifestly excessive.

74. The penalty imposed was a fine of $500 and licence disqualification for six months. The maximum fine for the offence is ten penalty units, that is a fine of $1,400. Thus, the fine was set at more than one third of the maximum. The automatic disqualification applicable under s 34 of the Alcohol and Drugs Act was three years reducible to the minimum of six months to which the disqualification was here reduced.

75. While it is arguable that such a penalty was appropriate for the actual seriousness of the offence, other factors are very relevant and must be taken into account, namely the subjective circumstances of that offender. These include that Ms Vavoulas pleaded guilty at the earliest opportunity, that she showed significant remorse and that she was a first offender with no prior convictions of any kind, much less any traffic convictions, including any convictions for drink-driving. Of course, a conviction for driving after having consumed illicit drugs would have made her a repeat offender, rendering her liable to a more serious maximum penalty.

76. It is difficult to see how the penalty actually imposed would have allowed for a proper proportionate increase in a penalty for an offence where there were gradations of more serious objective and subjective circumstances.

77. This certainly suggests that the penalty was excessive.

78. The third matter, however, must be added to this. The unchallenged consequences for Ms Vavoulas consequent upon a conviction, as set out in the references was that, if convicted, Ms Vavoulas would lose both her jobs. Such consequences are not inevitable for many offenders; in many cases they are the unavoidable result of offending. That does not mean that they should not be taken into account. So much is clear from The Queen v CV [2013] ACTCA 22. It is also expressly a matter that s 33(1)(r) of the Sentencing Act requires the court to take into account.

79. Here the consequences would be very serious. It might also be noted that termination of the employment of Ms Vavoulas would deprive the community of what her referees described as her very valuable work supporting young children with challenging and diverse needs.

80. While Ms Vavoulas was not a young person subject to the special sentencing regime under Ch 8A of the Sentencing Act, she was still relatively young. This permits appropriate allowance also to be made in sentencing for her level of maturity. See R v Gordon (1994) 71 A Crim R 459 at 469; R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at 458; [25].

81. Taking all these matters into account, it seems to me that the penalty imposed was manifestly excessive.

82. As I have found sentencing error, it falls upon me to re-sentence Ms Vavoulas.

83. I take into account the following matters under s 17(3) and (4) of the Sentencing Act:

• Ms Vavoulas entered an early plea of guilty, supported by her full and frank admissions to police;
• she is a first offender;
• her youth;
• her employment and the contribution she makes through it to her community;
• her remorse;
• her traumatic childhood experience which she has successfully overcome;
• that the events leading to the offence were out-of-character;
• her acceptance of responsibility for her actions, including by disclosure to her employers;
• that she is of positive good character (Goundar v Goddard [2010] ACTSC 56; (2010) 240 FLR 176 at 184; [44]- [47]); and
• that she is unlikely to re-offend.

84. Included in the matters to which I have regard is the seriousness of the offence, taking into account the following factors:

• Ms Vavoulas did not drive for more than ten hours after last consuming drugs;
• she had two passengers in the car with her;
• she had consumed two drugs which were subject to the relevant regime;
• there was no traffic suggested to have been present during the course of her driving; and
• there was nothing in the manner of her driving that drew the attention of police to the car she was driving.

85. In Baffsky at 96; [10]-[11], it is said that there is a two-step process for such matters. First the court must identify the factors that are mentioned in the section, then the court must consider whether, having regard to these factors, "it is inexpedient to inflict any punishment". That, however, relates to s 19B of the Crimes Act. The structure of s 17 of the Sentencing Act is different. There is, where under s 17(2)(b), no statutory consideration of inexpediency (or in the language of the Sentencing Act "appropriateness") as required under s 19B.

86. Such a second stage is required where, under s 17(2)(a) of the Sentencing Act, the court is considering dismissing the charge.

87. The instinctive synthesis that is required of a sentencer (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611; [25]) renders such an approach to be undertaken cautiously.

88. In my view, this is not a case where the charge should be dismissed but I am satisfied that a conviction is not required. A good behaviour order is sufficient.

I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.