SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / Beaver v Bolton
Citation: / [2016] ACTSC218
Hearing Date: / 29 July 2016
DecisionDate: / 29 July 2016
Before: / Burns J
Decision: / See [14]
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – driving with prescribed concentration of alcohol in breath – failure to consider non-conviction order – no previous convictions – appellant’s character – early guilty plea – appeal upheld – appellant re-sentenced.
Legislation Cited: / Crimes (Sentencing) Act 2005 (ACT), ss 13, 17
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19(1)
Cases Cited: / MacPherson v Thorncraft [2014] ACTSC 277
Parties: / Janice Beaver (Appellant)
Benjamin Bolton (Respondent)
Representation: / Counsel
Mr T Sharman (Appellant)
Ms V Conliffe (Respondent)
Solicitors
Sharman Lynch Solicitors (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number: / SCA 31 of 2016
Decision under appeal: / Court:ACT Magistrates Court
Before:Magistrate Morrison
Date of Decision:29 March 2016
Case Title:Benjamin Bolton v Janise Beaver
Court File Number:CC16/124

BURNS J:

1.This is an appeal from a decision of a magistrate given on 29March 2016 in which he imposed a conviction for a drink driving offence, fined the appellant $400.00and disqualified her from holding or obtaining a driver’s licence for a period of four months.

2.The appellant was charged in the Magistrates Court with an offence contrary to s19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) alleging that as a first offender in the Australian Capital Territory on 7November 2015, having been the driver of a motor vehicle on a road, she did have within the relevant period the prescribed concentration of alcohol in her breath, being level three. The appellant was charged by way of summons with that offence. That summons was returnable in the Magistrates Court on 29March this year. On that day, the appellant appeared before the magistrate unrepresented. She immediately entered a plea of guilty to the charge.

3.The facts were read which indicated essentially that the appellant had been the driver of a motor vehicle on a road in Wanniassa at about 8.05 pm on 7November 2015. She was stopped at a random breath testing location. She underwent an alcohol screening test, which was positive. She was taken into custody at which time she had a breath analysis that returned a result of 0.093 grams of alcohol per 210 litres of breath.

4.While dealing with the police, police observed that the appellant’s face was flushed, her speech was slurred and her eyes were watery. I interpolate at this point to note that the evidence given by the appellant before the magistrate would explain at least the flushing of her face and the apparent wateriness of her eyes, as she said that she had been very upset shortly before she drove the motor vehicle and indeed had been crying. She did not believe, according to her evidence before the magistrate, that her voice was slurred.

5.There does not appear to have been any dispute that she had driven only a very short distance before she was required to provide a sample of her breath at the random breath testing station. The reading of 0.093 was a level three reading. However, as was acknowledged by the magistrate, it is towards the bottom of the level three range.

6.A submission was put to the magistrate that the matter be dealt with pursuant to s17 of the Crimes (Sentencing) Act 2005(ACT) (the Sentencing Act) by way of a non-conviction order. Section17 relevantly provides that without convicting an offender of an offence, the court may make a non-conviction order consisting of either an order directing that the charge be dismissed or a Good Behaviour Order be ordered under s13 of that Act.Subsection(3) of s17 provides that in deciding whether to make a non-conviction order, the court must consider a number of circumstances or matters: firstly, the offender’s character, antecedents, age, health and mental condition; secondly, the seriousness of the offence; and thirdly, any extenuating circumstances in which the offence was committed.

7.There was evidence before the magistrate that the appellant had been the holder of a motor vehicle driver’s licence for some 47 years at the time that she came to be sentenced. She had no relevant previous convictions recorded against her. The evidence which the appellant gave focused significantly upon the circumstances surrounding her driving. That is not surprising perhaps because initially the examination of the appellant was conducted by the magistrate so that the magistrate determined effectively the subject matter of the examination.

8.The magistrate in rejecting that the matter be dealt with under s17 of the Sentencing Actsaid the following:

You have made an application that you be dealt with without recording a conviction. In the ordinary course of events when a person comes before the court and they either plead guilty or are found guilty of an offence, then a conviction follows as a matter of course.

9.No complaint can legitimately be made in relation to that statement of principle. HisHonour then went on to say:

There is, however, legislation in this jurisdiction which permits the court to find an offence proved but to deal with them without recording a conviction. That is regarded as an exceptional outcome because, as I have said, in the ordinary course of events if a person pleads guilty or is found guilty, a conviction follows as a matter of course.

10.Again, as a matter of principle, no exception could be taken to that statement by the magistrate. His Honour then goes on to consider the particular circumstances. He says:

I have taken into account the evidence that you have given about the circumstances surrounding the commission of the offence. I accept that you were in a somewhat highly charged emotional circumstance but, of course, the offence arises not as a result of your drinking but as a result of your decision to drive after the drinking. I also accept the evidence that you [gave] about your need for a licence, although it seems to me that the need for a licence does not extend beyond what would be simply inconvenience if a conviction is recorded and a disqualification is imposed. In all the circumstances, the material that is before me does not persuade me that the exceptional outcome of not recording a conviction is justified in your case.

11.It is true as counsel for the respondent pointed out during the course of argument in these proceedings that earlier in his Honour’s sentencing comments, he does make reference to the fact that the appellant effectively had no previous convictions recorded against her but that was before he went on to consider the application for the s17 dismissal.In the course of dealing with the application that the charge be disposed of under s17, his Honour does not appear to have turned his mind to a number of the relevant criteria that are set out under s17 and in particular the age and antecedents of the appellant. Counsel for the respondent submitted that it could be inferred that hisHonour had done so by reason of his Honour’s reference earlier to the fact that the appellant had no previous convictions. However, in my opinion, it is difficult to see how his Honour could have come to the conclusion that he did if his Honour had in fact turned his mind to the question of the antecedents of the appellant.

12.In that regard, counsel for the respondent took me to a decision of MacPherson v Thorncraft[2014] ACTSC 277 (MacPherson v Thorncraft), a decision of the ChiefJustice which was handed down on 23September 2014. There were some similarities in that case in that the reading was a reading of 0.085 grams of alcohol per 100 millilitres of blood which is a level three offence. The offender in that case was a first offender and the offender had been driving for some 36 years. However, it is not clear from the material in the judgment that the driving record of the offender in MacPherson v Thorncraft was as conspicuously beneficial to the appellant in that case as it is to the appellant in the present case. In that case I note that her Honour said that MrMacPherson had been driving for 36 years with a very long period free of infringements (since 1991). That is some 23 years whereas here the appellant has been conviction free for 47 years.

13.As I have said, that leads me, together with an examination of the text of his Honour’s sentencing comments, to conclude that his Honour did not take into account relevant circumstances when his Honour was making a determination not to proceed with the matter under s17. In my opinion, his Honour has not addressed the relevant criteria under the section and accordingly the appeal will be upheld.

Orders

14.I make the following formal orders:

(a)the appeal is upheld;

(b)the conviction and penalty imposed by the magistrate are set aside; and

(c)in substitution there will be an order pursuant to s17 of the Sentencing Act,based upon the appellant’s character, antecedents and age, directing that the charge be dismissed.

I certify that the preceding fourteen[14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.
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