SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / Richards v BurnesCitation: / [2017] ACTSC117
Hearing Date: / 19 May 2017
DecisionDate: / 19 May 2017
Before: / Elkaim J
Decision: / See paragraph [26]
Catchwords: / APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against sentence – whether the sentence imposed was manifestly excessive.
Legislation Cited: / Crimes (Sentencing) Act 2005(ACT) ss 17 and 18
Road Transport (Alcohol and Drugs) Act 1977(ACT) s 19
Cases Cited: / Lumby v Cooper [2008] ACTSC 53
Roseby v Harman [2014] ACTSC 125
Parties: / Peter Richards (Appellant)
Jon Burnes (Respondent)
Representation: / Counsel
Mr P Edmonds (Appellant)
Ms S Naidu(Respondent)
Solicitors
Canberra Criminal Lawyers (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number: / SCA 84 of 2016
Decision under appeal: / Court:ACT Magistrates Court
Before:Magistrate Boss
Date of Decision:24 November 2016
Case Title:DPP v Richards
Court File Number:CC 9021 of 2016
ELKAIM J:
1.On 24 November 2016, Magistrate Boss convicted the appellant of having driven with more than the prescribed concentration of alcohol in his breath in August 2016. He was disqualified from driving for three months and placed on a Good Behaviour Order for the same period.
2.The appellant is unhappy with the punishment. He does not think he should have been convicted. He submits that he should have been dealt with pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT).
3.I have approached the matter in accordance with the principles set out by Penfold J in Lumby v Cooper [2008] ACTSC 53,from paragraph [9].
4.The background facts are as follows.On 29 August 2016, the appellant was driving his Honda motor vehicle along Harrington Circuit in Kambah in the Australian Capital Territory (ACT). He was on his way home from the Burns Club, where he had consumed five full-strength schooners of beer over four hours. He was pulled over for a random breath test. A breath analysis produced a result of 0.051g of alcohol per 210L of breath.
5.The appellant was charged under s 19 of the Road Transport (Alcohol and Drugs) Act 1977 as a repeat offender. The offence carries a maximum penalty of a $1,500 and an automatic disqualification from driving for 12 months. The disqualification can be reduced to a minimum of three months.
6.The appellant was a repeat offender because he had been convicted of a similar offence some 27 years earlier. The appellant is a retired public servant who, since his retirement, has been active in the community as a volunteer.
7.The appellant, in oral submissions, concentrated on two points. Firstly, it was submitted that her Honour had made a mistake in not finding extenuating circumstances, notwithstanding her conclusion that the appellant had an honest belief that he was under the limit. Secondly, it was submitted that her Honour had erred in finding a need for specific deterrence, in particular against the background of the decision of Refshauge J in Roseby v Harman [2014] ACTSC 125, where his Honour dealt with very similar remarks made by the same Magistrate.
8.The basis for the first point was that a mistake which is honestly made is an extenuating circumstance. I think that is a possible conclusion but not a necessary one. The fact that her Honour reached that conclusion does not, of itself, give rise to error.
9.In relation to the template argument, I first of all do not think the fact that the wording is similar can be the subject of criticism. I can well understand that magistrates dealing with long lists of PCA cases would adopt similar language where applicable.
10.In her remarks on sentence, the Magistrate said that the offence was not serious and “it is a very low level.” She said that there was nothing remarkable about the offence, other than the fact that he was a repeat offender.
11.However, I do agree with Refshauge J’s comments in paragraph [77]:
It does not seem to me that there is a need for anything particularly “remarkable” to be present in the matters to be taken into account before the discretion can be exercised under s 17 of the Sentencing Act.
12.I also have come to the view that there is specific error in her Honour’s reasoning, notwithstanding that the error was not advanced by the appellant. I mentioned the point in argument and, unsurprisingly, it was adopted by the appellant. I also gave the respondent the opportunity to deal with it.
13.The Magistrate was concerned that the appellant had consumed five schooners of full strength beer before driving. She accepted that “he may well have believed himself to be under the limit”. Her Honour continued, stating “that belief could not be a reasonable one having consumed so much full strength beer.” Nevertheless, she observed that “he was only just over the limit.”
14.Then her Honour stated:
I am significantly concerned about the message that it would send to – pursuant to section 17, given the amount – the quantity of alcohol that was consumed.
15.I think, with respect, that this is an error in her Honour’s approach. The error is the emphasis on the quantity of alcohol consumed, rather than on the reading produced in the random breath test.
16.As I understood her Honour’s sentencing remarks, she rejected the request that the appellant be dealt with pursuant to s 17 because of the need for general deterrence and, in particular, the need to send a message to the community that drinking and driving is not acceptable. These are, of course, very relevant considerations.However, the difficulty here is that emphasis has been placed on the amount of alcohol consumed rather than on the reading.
17.I do not know why the consumption of five schooners of beer did not produce a higher reading. The fact is that it did not. The appellant was not charged with consuming five schooners of beer. He was charged with returning a result on breath testing that was higher than the permissible limit.
18.It is well known that different persons will produce a different result after consuming the same amount of alcohol. What is important is whether or not they exceed the limit. The limit is set by Parliament to indicate the maximum acceptable level of consumption before a driver is not permitted to operate a vehicle.
19.I also observe that there is a possible illogicality in a finding that it was unreasonable for the appellant to believe he was under the limit, but be at 0.051, when it would necessarily have been reasonable had the reading been different by a measure of 0.002.
20.Having identified error, it is open to me to re-sentence the appellant. As her Honour noted, although he was technically a repeat offender, the previous offence was so old as to be essentially irrelevant. The appellant pleaded guilty. Once again, her Honour recognised this as a factor in his favour and she plainly took into account his age and personal circumstances.
21.The appellant was 63 years of age when sentenced. He is a retired public servant but has not given up his service to the public. He continues to volunteer and assists at a number of primary schools in the area in which he lives. He presents as a person classically entitled to leniency.
22.I also note that, before sentencing, he had completed a drug and alcohol awareness course.
23.My approach to sentencing is essentially the same approach as that taken by her Honour, the only difference being my concentration on the reading as opposed to the amount of alcohol consumed, the latter being a factor which, in my view, her Honour should not have taken into account.
24.Like her Honour, I think there should be a disqualification from driving for a period. This will achieve the necessary messages of deterrence, both to the appellant and to the public at large. For the same reasons, I will also impose the same Good Behaviour Order. The respondent said there was a case due to come before the ACT Supreme Court debating the validity of a disqualification under s 18 of the Crimes (Sentencing) Act 2005 (ACT). I am not aware of this case, but it does seem to me that there is an obvious power in s 18 (5) (f).
25.Lest any confusion arise from my remarks, let me make this plain. If a person drives a motor vehicle after consuming a large amount of alcohol and is apprehended and found to have a high reading then that excessive consumption of alcohol is to be condemned and acted upon. If, however, regardless of the amount of alcohol consumed, only a reading barely above the limit is produced, then the court should approach sentencing on the basis of the reading, not on how much alcohol was required to produce it.
26.I make the following orders:
(a)The appeal is allowed.
(b)The conviction recorded by the learned Magistrate, but not the finding of guilt, is set aside.
(c)A non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) is substituted.
(d)The appellant is disqualified from driving for a period of 3 months from19 May 2017 to 18 August 2017, pursuant to s 18 of the Crimes (Sentencing) Act 2005 (ACT).
(e)The appellant is to be subject to a Good Behaviour Order of 3 months from 19 May 2017 to 18 August 2017, pursuant to ss 13 and 17 (2) (b) of the Crimes (Sentencing) Act 2005 (ACT).
I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim.Associate:
Date: 19 May 2017
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