SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
Atmore v Milner
Citation:
[2016] ACTSC 260
Hearing Date:
28 July 2016
Decision Date:
12 September 2016
Before:
Refshauge ACJ
Decision:
1.
2.
3.
4.
Catchwords:
The appeal be upheld.
The conviction for driving as a repeat offender with Level 4
prescribed concentration of alcohol be confirmed.
The sentences, including the disqualification from holding or
obtaining a driver licence, be set aside.
The parties be heard as to the sentence to be imposed.
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE –
Appeal from Magistrates Court – appeal against conviction –
appeal against sentence – licence disqualification – allowance
for guilty plea – adequate reasons not given for sentence
CRIMINAL LAW AND PROCEDURE – SENTENCING –
Manifestly excessive sentence – failure to take into
consideration impact of licence suspension – considerations
where sentence to be imposed – interference with employment –
financial hardship on employer – protection of community
Legislation Cited:
Crimes (Sentencing) Act 2005 (ACT), s 12
Crimes (Sentence Administration) Act 2005 (ACT)
Magistrates Court Act 1930 (ACT), ss 214, 214(3)(b), 216
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4C, 4E,
8, 19(1), 26, 33, 35
Road Transport (General) Act 1999 (ACT), s 61B
Road Transport (Driver Licensing) Regulation 2000 (ACT), s 52,
73T, 73U, 73W, 73X, 73ZL, Pt 3A
Cases Cited:
Allred v The Queen [2015] ACTCA 21
Barac v Thexton [2008] ACTSC 137
Bullock v Bower [2015] ACTSC 185
Burow v Hoyer (2015) 292 FLR 325
Cajina v Narsey [2016] ACTSC 10
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Crimmins v Pearson [2016] ACTSC 195
Dinsdale v The Queen (2000) 202 CLR 321
Grooms v Toohey (2012) 7 ACTLR 1
Hammond v Road Traffic Authority [2006] ACTSC 125
Hugg v Driessen (2012) 261 FLR 324
Irving v Head (2016) 75 MVR 13
Oliver (1982) 7 A Crim R 174
Piper v Hall [2013] ACTSC 207
Rich v Australian Securities and Investment Commission (2004)
220 CLR 129
R v McGrail [2016] ACTSC 141
R v Pairvenan (1985) 158 CLR 489
R v TW (2011) 6 ACTLR 18
R v Van Hoang Pham [2005] NSWCCA 94
Scott v Wynants (2009) 4 ACTLR 13
Shires v Edwards [2011] ACTSC 132
Sladic v Proud [2013] ACTSC 232
Smith v O’Dell [2016] ACTSC 176
Stoeher v Meyer [2016] ACTSC 144
Valentini (1980) 2 A Crim R 170
Texts Cited:
Australian Law Reform Commission, Alcohol, Drugs and Driving
(ALRC, Sydney, 1976) Report No 4
Parties:
Andrew Atmore (Appellant)
Saul Milner (Respondent)
Representation:
Counsel
Mr P Edmonds (Appellant)
Ms R Khazma (Respondent)
Solicitors
Canberra Criminal Lawyers (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number(s):
SCA 10 of 2016
Decision under appeal:
Court/Tribunal:
ACT Magistrates Court
Before:
Special Magistrate Doogan
Date of Decision:
27 January 2016
Case Title:
The Queen [sic] v Atmore
Court File Number(s): CC 11347 of 2015
REFSHAUGE J:
1.
On 25 November 2015, at about 10.25pm, the appellant, Andrew Atmore, was driving
along Belconnen Way, Aranda, in the ACT, when he was stopped by police conducting
random breath testing.
2.
Mr Atmore was subject to a breath screening test under s 8 of the Road Transport
(Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). The test proved
2
positive and Mr Atmore was taken into custody. He was taken to Belconnen Police
Station for the purpose of undergoing breath analysis.
3.
At about 10.56pm that day, Mr Atmore, in accordance with the directions of a police
officer, provided a sample of his breath that was sufficient for analysis and the result
showed that the sample contained 0.153 grams of alcohol per 210 litres of breath. This
was a prescribed concentration under s 4C of the Alcohol and Drugs Act. This was also
a level 4 reading under s 4E of that Act.
4.
Mr Atmore was served with an immediate suspension notice under s 61B of the Road
Transport (General) Act 1999 (ACT).
5.
As a result of these matters, Mr Atmore was charged with being a driver of a motor
vehicle with a prescribed concentration of alcohol in his breath, being level 4.
6.
He was initially charged as a first offender but, for reasons that will appear below, the
charge was amended to allege that he was a repeat offender.
7.
Driving with the prescribed concentration of alcohol is an offence against s 19(1) of the
Alcohol and Drugs Act which, under s 26 of that Act, renders him, as a repeat offender
for a level 4 breath alcohol concentration, liable to a maximum penalty of 20 penalty
units (that is, at the time, a fine of $3,000) and imprisonment for 12 months.
8.
Under s 33 of the Act, it also means that he is automatically disqualified from holding or
obtaining a driver licence for five years unless the court orders a shorter period of
disqualification.
9.
Mr Atmore appeared in the Magistrates Court on 18 December 2015. The charge was
amended as noted above (at [6]) and he indicated that he would plead guilty. The
proceedings were adjourned.
10.
At the adjourned hearing on 27 January 2016, he entered a plea of guilty and was
convicted. He was sentenced to three months imprisonment which, was immediately
suspended for a period of 18 months and a Good Behaviour Order was made for
18 months. He was disqualified from holding or obtaining a driver licence for three
years.
11.
Mr Atmore has appealed from the disqualification period in the sentence.
Jurisdiction
12.
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.
13.
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.
14.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or
extraneous considerations, or failing to take account of relevant or material
considerations. If I find specific error but the original sentence nevertheless appears to
be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose
the same sentence.
3
15.
Even if I cannot identify a specific error, however, I may uphold the appeal and
substitute another sentence for the original sentence if I find that the original sentence
is manifestly excessive, unreasonable, plainly unjust or plainly wrong.
16.
I shall apply these principles in this case.
17.
Under s 216 of the Magistrates Court Act 1930 (ACT), the filing of a Notice of Appeal
stays the enforcement of the sentence or penalty the subject of the appeal. That often
has to be addressed at the conclusion of the appeal.
Notice of Appeal
18.
The Notice of Appeal indicated that Mr Atmore would seek to put forward further
evidence before the Court.
19.
Mr Atmore sought to amend the Notice of Appeal at the hearing to vary the grounds of
the appeal and the particulars of those grounds. As there was no opposition, I
permitted that amendment.
20.
The grounds of the appeal in the amended Notice of Appeal were:
21.
(a)
the sentence appealed from is manifestly excessive;
(b)
the Sentencing Magistrate did not have regard to the plea of guilty; and
(c)
in the alternative to the above, the Sentencing Magistrate did not give adequate
reasons, specifically as to how she took the defendant’s plea of guilty into
account.
Particulars of the grounds were that the Sentencing Magistrate did not refer to the plea
of guilty in her reasons for sentence.
Further evidence
22.
As foreshadowed in the Notice of Appeal, Mr Atmore sought leave to adduce further
evidence on the hearing of the appeal.
23.
Further evidence is admissible with leave of the Court under s 214 of the Magistrates
Court Act.
24.
I have set out the principles under which these provisions operate in Grooms v Toohey
(2012) 7 ACTLR 1 at 8-10 [35]-[37].
25.
I also set out in Grooms v Toohey at 12 [52], the effect of the admission of such
evidence, where I said:
The appellate court must decide whether, under s 214(3) or (4) of the Magistrates Court
Act, the further evidence is to be admitted. If it is, the court must then consider whether a
different sentence should, in the light of this further evidence, have been imposed. If it
comes to the view that it should have been, then the sentencing discretion is enlivened and
the sentencing proceedings must be re-opened. On those proceedings, still further
evidence may then be admitted, though often it is not. Some or all of that additional
evidence may not have been admissible under s 214(3) or (4), but should have, of course,
to be admissible in sentencing proceedings. If, having considered all this evidence and, of
course, the evidence before the Magistrate, the appellate court considers in the exercise of
its independent discretion that no other sentence than that of the Magistrates Court should
be imposed, the appeal should be dismissed. If that is not the case, then the appellate
court should either remit the proceedings back to the Magistrates Court to be dealt with
according to law or should sentence the appellant.
4
26.
The further evidence initially sought to be admitted was a letter from Mr Atmore’s
employer dated 18 February 2016, that is after the sentencing.
27.
There was no opposition to the admission and, accordingly, under s 214(3)(b) of the
Magistrates Court Act, I admitted the evidence.
28.
One of the issues in the appeal involved the effect, if any, of the scheme under the
Road Transport (Driver Licensing) Regulation 2000 (ACT) (the Regulation), for the
installation in motor vehicles in certain circumstances of Alcohol Ignition Interlock
Devices. See Pt 3A of the Regulation.
29.
Mr P Edmonds, who appeared for Mr Atmore, invited me to look at the ACT Road
Transport Authority website which had information. Later in the hearing, he tendered
some material from that website which set out answers to what were called “frequently
asked questions”. There was no objection to the admission of that material either. I
was initially unsure whether it was strictly further evidence; rather, it seems to be
information about the scheme, which presumably would have been available to me by
reading the relevant parts of the Regulation together with any policies about its
implementation.
30.
On further reflection, however, it was evidence and not, for example, submissions,
authorities or legislation and, accordingly, the tender being by consent, I admitted the
evidence and marked it as an exhibit.
The evidence
31.
The facts are set out in basic outline at [1]-[4]. I do not need to repeat them. I note that
there was no reliance by the prosecution on any manner of Mr Atmore’s driving that
drew the attention of police to him; they were, it appears, simply engaged, as the
description above (at [1]) suggests, in randomly stopping cars and testing the drivers
for alcohol in their breath.
32.
Nevertheless, police described Mr Atmore as speaking slowly with slightly slurred
speech; his eyes were sleepy and his face was flushed. His walk was slow and slightly
unsteady.
33.
He told police that he had been drinking at the Yowani Country Club in Lyneham and
had consumed about eight schooners of full strength beer.
34.
At the time of Mr Atmore’s driving, the weather was fine. The stretch of Belconnen Way
on which he was driving had a bitumen surface and was in good condition and dry; the
street was well lit. The vehicle and pedestrian traffic was described as moderate.
The offence
35.
Driving while intoxicated with alcohol or a drug is a serious social problem leading to
motor vehicle collisions that can result in death or bodily injury, sometimes of a serious
kind.
36.
As I explained in Crimmins v Pearson [2016] ACTSC 195 at [59], offences such as
those created by s 19(1) of the Alcohol and Drugs Act are designed to render the
streets of our community safer by reducing on them the number of persons driving
while impaired by alcohol consumption.
37.
The offence itself does not rely on proof of actual impairment for reasons briefly
addressed in Australian Law Reform Commission, Alcohol, Drugs and Driving
5
(ALRC, Sydney, 1976) Report No 4. In any event, in this case, it was clear on the
evidence that Mr Atmore was impaired; his reaction time at least would obviously have
been compromised.
38.
The response to the offence is punishment of the usual kind – fines or imprisonment in
relevant circumstances. Additional to this is the requirement for disqualification of the
offender’s driver licence. As I explained in Barac v Thexton [2008] ACTSC 137 at [44][47], a driver licence is a privilege and not a right. Disqualification from obtaining or
holding such a licence is part of the sentence, so that questions of manifest excess or
inadequacy must take the period of disqualification into account, but the disqualification
itself has protective as well as punitive aspects.
39.
There is a default period for disqualification, which may be reduced, but not below a
statutory minimum. I explained this in Burow v Hoyer (2015) 292 FLR 325.
40.
The legislation provides two levels of penalty, including disqualification, depending on
whether the offender is a repeat offender or a first offender. Until 1 December 2010, a
person was a repeat offender only if he or she had been convicted of a relevant
(i.e. similar) offence within the previous five years. Thereafter, any prior conviction,
whenever occurring, even 30 years before, would render the offender a repeat offender
for any subsequent offence. Obviously, however, the recency or not of the prior
offending was relevant to the actual sentence but it did not affect the maximum penalty
which relied simply on whether the person was a repeat offender as well as the level of
blood or breath alcohol concentration as set out in s 4E of the Alcohol and Drugs Act.
Subjective circumstances
41.
Mr Atmore is a 35 year old man who has lived in the ACT for about six years. He had a
supportive upbringing and continues to have a good relationship with his family
members who live interstate.
42.
He is currently single with no dependents, his last long-term relationship having ended
in late 2014.
43.
He completed his Year 12 education and then an apprenticeship as an electrician.
44.
He is a qualified electrician. He formerly conducted his own business but a surgical
operation required him to stop work. He was in financial difficulties also as a result of
not being paid the money he was owed for work done and he is seeking assistance to
consolidate his debts.
45.
He is currently employed as a senior electrician by an electrical contracting company
and a reference was tendered on his behalf from his employer. He was described as
“a diligent and conscientious employee” who has worked hard since joining the
company.
46.
His work requires him “to provide service and maintenance services to a number of key
clients sites and to supervise minor works projects on a number of different commercial
sites” in the ACT. Thus, he is required to visit sites in the course of his work and he is
supplied with a company vehicle for that purpose which also enables him to carry an
extensive tool kit, including a ladder, for each work site. He is required to respond to
calls for assistance, often at short notice and out-of-hours.
47.
It is clear that the required loss of his licence will severely restrict his ability to perform
what is described as a key function of his work and will affect his employment. This
6
employment was described in a Court Duty Report as “a protective factor against
further re-offending”.
48.
Mr Atmore first consumed alcohol when he was 16 or 17 years old. He did have a
period of problematic alcohol misuse from about age 18. He would drink up to
15 standard alcoholic drinks each Friday and Saturday nights.
49.
As his business was failing, he also turned to alcohol to deal with his stress but he has
been abstinent since he committed this offence. He has commenced attending weekly
meetings of Alcoholics Anonymous as well as seeing a private psychologist.
50.
He has discussed appropriate treatment options and may proceed to attend the
SMART Recovery Program, a drug and alcohol program I described in R v McGrail
[2016] ACTSC 141 at [78]-[80].
51.
Mr Atmore has had three surgical operations on his knees; the most recent operation
was in February 2015. This also restricted the activity in which he had engaged and
which he found had helped him deal with the depression and anxiety from which he
suffers. He has obtained a Mental Health Care Plan from his General Practitioner to
deal with his mental health issues.
52.
His psychologist provided a brief report. In it, he identified a range of mood related
symptoms from which Mr Atmore suffers and expressed his belief that Mr Atmore’s
drinking “may have been a way for him to cope with, and manage, the distress caused
by his low mood”. Mr Atmore’s psychologist reported that Mr Atmore had been a willing
participant in therapy and appeared to be committed to resolving his problems.
53.
There were slightly conflicting reports of the results of alcohol screening tools
administered by ACT Corrective Services on the one hand and the Court Alcohol and
Drugs Assessment Service (CADAS) on the other. The former reported that his current
pattern of alcohol consumption is at the high risk or harmful level, requiring “brief
intervention”, counselling and follow-up referral; the latter disclosed from administration
of the Severity of Dependence Scale that he did not currently have a dependence on
alcohol. The discrepancy may be caused by the fact that the Corrective Services test
was taken on 8 January 2016 only a little over a month since he had become abstinent,
while the CADAS assessment was conducted on 20 January 2016.
54.
A reference from his sponsor at Alcoholics Anonymous, who had been his sponsor for
two months at the date of the reference, assessed him as committed to stopping
drinking and that this was a genuine desire. He was reported to attend meetings
regularly and frequently and to participate every time. The CADAS report also stated
that he “impressed as being sincere in his motivation to seek continuing support”.
55.
Mr Atmore has no criminal record in the ACT. He has, however, been found guilty of
two drink driving offences in NSW. The first offence was committed on 17 June 2004
when he was found guilty of driving with the middle range prescribed concentration of
alcohol. He was sentenced to a non-conviction bond for 12 months. Regrettably, he
committed the same offence on 23 April 2005 and, as a result, was re-sentenced for
the earlier offence as well as for the further offence.
Further evidence
7
56.
As noted above (at [26], [29]), the further evidence consisted of a further letter from
Mr Atmore’s employer and details of the ACT’s Alcohol Ignition Interlock Program
(the Interlock Program).
57.
The letter from Mr Atmore’s employer confirmed that he was still employed full-time as
a senior electrician and confirmed the opinion of his work performance expressed in
the earlier letter, including that he often undertook complex work for which he was fully
responsible.
58.
It further stated that the company continued to support Mr Atmore and had provided
him with a driver to alleviate the effect of his loss of driver licence but that the logistics
and costs meant that the company could not do so for more than 18 months and, if he
was unable to drive for longer than that period, he would lose his employment.
59.
The Interlock Program is a statutory program established under Pt 3A of the
Regulation. A brief summary is as follows.
60.
A person charged with an offence against s 19(1) of the Alcohol and Drugs Act at a
Level 4 prescribed concentration must apply under s 73U of the Regulation for a
Report from CADAS as to whether the person would benefit from any form of
therapeutic treatment or program. The report and its recommendations must be
presented to the Court dealing with the offence and the Court in sentencing may order
that the offender have any treatment or undergo any program as recommended.
61.
After being sentenced and disqualified from holding or obtaining a driver licence for
such an offence under s 52 of the Regulation, the person may, in any event, at the end
of that period of disqualification only be issued with a probationary licence. However, a
person after sentencing and disqualification, who has completed half the period during
which he or she has been disqualified from holding or obtaining a driver licence and
who is not otherwise so disqualified, may apply for the grant of a probationary licence:
s 73T of the Regulation.
62.
Section 73T of the Regulation then requires the probationary licence issued on the
application for the early grant of a licence to be issued subject to an interlock condition.
An interlock condition under s 73W is a condition of the probationary licence that
requires that the person only drive a particular vehicle nominated under s 73X and
which has fitted an interlock. An interlock is defined under s 73ZL as a device which
prevents a motor vehicle from being started or continuing to be driven if the device is
provided with a sample of the licence holder’s breath.
63.
The condition lasts for six months or until the disqualification period ends, whichever is
the longer period, but is extended if the Road Traffic Authority is satisfied that the
person has, inter alia, committed an interlock breach which includes providing to the
interlock a breath sample containing more than 0.02 grams of alcohol in 210 litres of
breath, or, on two occasions, provides to the interlock samples of breath containing
between 0.00 grams and 0.02 grams of alcohol in 210 litres of breath, or fails to provide
a sample of breath to the interlock when required.
64.
In summary, the Interlock Program mandates the installation in the offender’s vehicle,
being the only vehicle the person is permitted to drive, an interlock which prevents the
engine of the vehicle from being started unless a sample of breath without alcohol is
provided or from being further driven unless a sample of breath without alcohol is
further provided and the requirement remains until at least the end of the period during
8
which the person is disqualified from holding or obtaining a driver licence or, if any
interlock breach is committed during the last three months of that period, at the end of
a further three months until that period expires without further breach.
Sentencing
65.
Mr Atmore’s counsel submitted to the Magistrates Court at the sentencing hearing that
Mr Atmore had been in employment since he was at school, except for a period of
rehabilitation from a sporting injury. His mental health, it was submitted, was not good
and that had led him into “a black hole” which led to his drinking.
66.
It was submitted that there was a significant 10 year period since his last drink-driving
offence. The current offence had led him, albeit belatedly, to face up to the fact of his
excessive alcohol consumption and he had taken steps by engaging in psychological
counselling and, more importantly, had given up drinking alcohol altogether, though this
was, at the time of sentencing, had only been for two months. The CADAS
assessment of his sincerity in abstinence was emphasised, however, as was his
commitment to Alcoholics Anonymous.
67.
The reading was, it was submitted, only just within the Level 4 reading; the lowest level
was 0.15 grams of alcohol in 210 litres of breath. Emphasis was also placed on the
Interlock Program which would enable him to minimise the effect on his employment
without undermining the protection of the community.
68.
It was submitted that a community service condition to a Good Behaviour Order, for
which he has been assessed as suitable in the Court Duty Report, was within range.
As well, he had the capacity to pay a substantial fine.
69.
No submissions were made by the prosecutor.
70.
The Sentencing Magistrate then proceeded to sentence. Her Honour referred to the
maximum penalty of imprisonment, with respect correctly indicating that the maximum
penalty was relevant to determining the serious nature of the offence. See Oliver
(1982) 7 A Crim R 174 at 176.
71.
Her Honour also noted that, while a community service condition to a Good Behaviour
Order was within range of proper sentences for a third drink driving offence, so was a
term of imprisonment. Her Honour referred to the reading as a high reading; it was an
ambiguous comment, for the reading was not a high Level 4 reading, but, given that
Level 4 is the highest level of prescribed concentrations, it was, in that context, a high
reading for all prescribed concentrations. It was not a high reading in Level 4.
72.
Her Honour said she assumed that there would be people on the road on which
Mr Atmore had been driving, implying that there was no information before her Honour
about that matter, despite the statement of facts asserting that vehicular and pedestrian
traffic was moderate.
73.
Her Honour referred to the danger of drink-driving and the possible consequences
including death to him or others. Her Honour referred to “sympathy with people who
drink in excess, there’s always a reason ... people who try to somehow use alcohol as
some sort of sedation or cure” and rightly pointed out that this was not an excuse, that
is in the usual legal sense of a complete answer to the charges. See Smith v O’Dell
[2016] ACTSC 176 at [78]-[80].
9
74.
Her Honour considered that a term of imprisonment for a third offence was “well and
truly on the cards” for Mr Atmore and considered that “nothing else would be
appropriate”. Her Honour, however, considered that it should be suspended but that
the Good Behaviour Order then required under s 12 of the Crimes (Sentencing) Act
2005 (ACT) should not include a community service condition because it would
“interfere with [your] employment”.
75.
Her Honour said to Mr Atmore that
the only reason I’m not imposing a sentence of imprisonment [though her Honour had
made it clear that she was doing just that, but suspending it – still a sentence of
imprisonment: Valentini (1980) 2 A Crim R 170 at 175; presumably her Honour meant a
sentence of full-time custody] is because you have taken steps to address what’s going on
in [your] life and that’s important and I accept that you’ve done that.
76.
Her Honour then pointed out that Mr Atmore could cease counselling the next day and
give up attending Alcoholics Anonymous, adding, “I will trust that you will keep up with
the counselling, if for no other reason than for your own sake”. That was a somewhat
curious comment, for I note that if it were a concern to her Honour that he would cease
these activities, her Honour could have made attendance at those treatment regimes a
condition of the Good Behaviour Order her Honour was required to make. In fact, her
Honour, in general terms, did just that.
77.
Her Honour emphasised Mr Atmore’s youth, his employment and his contribution both
past and potential to the community and that by doing the right thing both himself and
the community would benefit.
78.
Her Honour then indicated that the default disqualification was to be reduced as it was
too long.
79.
Her Honour imposed the sentence of three months imprisonment to be wholly
suspended with a Good Behaviour Order of 18 months with self-surety of $500 and
supervision for 12 months or less if his supervisor considered a lesser period to be
appropriate and a condition that he attend courses and programs especially related to
drug and alcohol counselling and any mental health issues as the person supervising
him considers appropriate. Her Honour disqualified Mr Atmore from holding or
obtaining a driver licence for three years and ordered him to pay $75 court costs within
28 days. Her Honour exempted him from paying the criminal injuries compensation
levy.
The appeal
80.
There were two issues on the appeal: the absence of a reference to the plea of guilty
and what was submitted to be the manifestly excessive period of disqualification.
Plea of guilty
81.
As to the first issue, I pointed out in Smith v O’Dell at [89]-[96], that the failure to refer
to a plea of guilty is, as has been held regularly in this Court, a specific error, for it
means that the appeal court cannot be satisfied that it has been taken into account.
82.
I accept that not much is required to show that in sentencing the plea has been taken
into account, and, as Murrell CJ pointed out recently in Cajina v Narsey [2016]
ACTSC 10, there is no requirement for the sentencer to explain how it has been taken
into account or what, if any, discount is applicable. See also Sladic v Proud [2013]
ACTSC 232 at [60]. It must be taken into account and that is only shown by a specific
10
reference to it. In this case, there was not even an indirect reference, as accepted in
Cotter v Corvisy (2008) 1 ACTLR 299 at 310 [54] would have been sufficient to show it
had been taken into account.
83.
Counsel for the respondent accepted in oral argument that this was so.
Manifest excess
84.
The next question, then, is whether the sentence was manifestly excessive. That is the
finding of a conclusion from the total circumstances, having regard to sentencing
practice. See Dinsdale v The Queen (2000) 202 CLR 321 at 325 [6].
85.
As approved recently by the Court of Appeal in Allred v The Queen [2015] ACTCA 21
at [29], the approach of the Court to this ground has been set out in R v TW (2011)
6 ACTLR 18 at 27-8 [59]-[61], as follows:
59. Neither party to the appeal really provided an insight into the current sentencing
standards by which the court could judge the sentence, what has been called “the
collective wisdom of the judges”: per Hunt CJ at CL in R v Ellis (1993) 68 A Crim R
449 at 460.
60. In R v Campbell, this court set out in summary the task faced by an appellant seeking
to show that a sentence is manifestly inadequate, or excessive. The court said
(at [32]-[35]):
32.
In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to
[47]):
46.
The determination of whether a sentence is manifestly excessive (or
inadequate) is not an easy task. It must, however, be approached
rationally and, as Gleeson CJ and Hayne J said in Dinsdale
v The Queen, quoted above (at [42]), must be accompanied by
reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
47.
Counsel is, therefore, obliged not merely to assert the alleged manifest
excess (or inadequacy) of the sentence but must also address the
basis of the assertion by identifying the relevant matters which go to
show how it is said the court can — and should — draw the relevant
conclusion.
See also R v Thorn [2010] ACTCA 10 (at [33]).
33.
As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range
appropriate to the objective gravity of the particular offence and to the subjective
circumstances of the particular offender, and not whether it is more severe or
more lenient than some other sentence which merely forms part of that range.
34.
It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed)
said in R v Morse (1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the
perspective of the maximum sentence prescribed by law for the crime, the
standards of sentencing customarily observed with respect to the crime, the place
which the criminal conduct occupies in the scale of seriousness of crimes of that
type, and the personal circumstances of the offender.
35.
The same can apply, mutatis mutandis, to claims that a sentence is manifestly
inadequate.
61. This can be achieved, for example, where a court of criminal appeal has set out a
range or tariff for a particular offence or where, as in Rama v The Queen [2006]
ACTCA 25, a conspectus of comparable sentences, identifying relevant
characteristics, is produced to the court. Neither party proceeded in either way in this
case, making it difficult for the court to discharge the obligation of assessing the
sentence against the relevant sentencing standards. In that sense, the appellant has
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not produced the necessary material from which the court can determine whether the
appeal should be upheld or not.
86.
Mr Edmonds pointed to the following factors on which he relied to show that, in
combination with the suspended sentence and length of Good Behaviour Order, the
sentence, including the period of disqualification, was manifestly excessive.
87.
These were:

the prescribed concentration was “only just into” the Level 4 range;

it was not the manner of Mr Atmore’s driving that drew him to the attention of
police;

this offence was only committed 10 years after his earlier offence;

the need for specific deterrence was somewhat ameliorated by the mandatory
Interlock Program.
88.
I accept that, with the plea of guilty, the abstinence from alcohol consumption and the
steps Mr Atmore has taken to address the underlying causes of his abuse of alcohol,
namely the Mental Health Care Plan and attendance at psychological counselling
together with his participation in Alcoholics Anonymous, are very strong subjective
factors.
89.
I am not convinced that the existence of the Interlock Program is a mitigating factor.
Indeed, it is unclear whether it should be taken into account at all.
90.
It seems to me that it is rather more like executive action after sentence, such as the
previous regime of good behaviour remissions on a sentence of imprisonment or the
deportation of convicted offenders which are not to be taken into account on sentence.
See R v Pairvenan (1985) 158 CLR 489 at 494-5 [6]; R v Van Hoang Pham
[2005] NSWCCA 94 at [13]-[14]. I did not, however, hear full argument on the issue
and so would not wish to make a final finding.
91.
The disqualification from holding or obtaining a driver licence in sentencing has been
recently considered by Murrell CJ in Stoeher v Meyer [2016] ACTSC 144, where, at
[36], her Honour agreed that the approach I had adopted in Burow v Hoyer was correct
and should be allowed.
92.
Her Honour considered at [32]-[35] that the disqualification period, while part of the
sentence, thus making purposes such as punishment and deterrence relevant, was
primarily for the purpose of protection of the public. This does not seem to me to be
very different from what I said in Barac v Thexton. In any event, this dual aspect is
consistent with the High Court’s decision in Rich v Australian Securities and Investment
Commission (2004) 220 CLR 129.
93.
Having regard to this purpose, her Honour held in Stoeher v Meyer at [35], that the
Court must consider two questions: What period is necessary or desirable to provide
adequate public protection in the circumstances of the particular case? The second is:
What effect will the period of disqualification have on the offender?
94.
In order to answer the first question, some information about sentencing practice is
desirable. That is not easy to access. I was informed that the Sentencing Database
does not contain details of disqualifications imposed by courts.
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95.
This Court does see a number of appeals from the Magistrates Court where
disqualification is in issue and from these some information can be gleaned. I note,
too, that in Scott v Wynants (2009) 4 ACTLR 13 at 16 [14], Higgins CJ pointed out that
a statistical analysis presented to him showed that, in the case of sentences for
offenders with Level 4 prescribed concentrations of alcohol, there was “a routine
reduction of the default period from five years to between 18 and 24 months”.
96.
His Honour also referred in that decision at 16 [12], to the decision of Hammond
v Road Traffic Authority [2006] ACTSC 125, where a repeat offender with a prescribed
concentration of alcohol of 0.235 grams of alcohol per 100 mls of blood was sentenced
to a Good Behaviour Order with community service and a two year period of
disqualification.
97.
See also, but on different levels of prescribed concentrations of alcohol and under a
different regime, though not, therefore, irrelevant, Piper v Hall [2013] ACTSC 207.
98.
Judged by these decisions, the disqualification period in this case seems unduly long.
99.
I accept that the plea of guilty is not a significant factor in this. While it may evidence
remorse and insight, it is far more likely in the majority of cases simply to be a
recognition of the inevitable conviction that the evidence for such an offence will prove.
That is why, as noted by Penfold J in Bullock v Bower [2015] ACTSC 185, the plea will
rarely have significant direct effect.
100. That Mr Atmore has two prior convictions does mean that more emphasis will be
placed on community protection. That they were for offences where the prescribed
concentration was lower than in this case has two implications, pointing in different
directions: on the one hand, the offending is becoming more serious; on the other
hand, the history does not reveal an entrenched pattern of high-level risky and
community-threatening behaviour.
101. When the circumstance is added that these were committed a decade ago, when the
response to this offence that Mr Atmore has made, with abstinence, participation in
Alcoholics Anonymous and psychological counselling, is added and that the reading
was just within a Level 4 range is also considered, a less serious view of the need for
community protection must prevail.
102. It must also be accepted that the effect on Mr Atmore is relevant: Stoeher v Meyer at
[35]. This is where the further evidence, namely the second letter from Mr Atmore’s
employer becomes relevant. It is clear that the Sentencing Magistrate was concerned
about the risk that a sentence may have to interfere with Mr Atmore’s employment.
Her Honour was right to have regard to that. See, for example, Shires v Edwards
[2011] ACTSC 132 at [82].
103. Employment is an important factor in rehabilitation and often can prevent further
offending. The loss of a job can have devastating effects, including leading to
homelessness. This does not mean that in an appropriate case a proper sentence
should not be imposed where it will have this effect. There are consequences for
breaching the criminal law, but where a proper sentence can be imposed that does not
result by its terms in the loss of employment, the community is usually better served.
There are many examples of criminal sanctions, such as periodic detention and special
driver licences that have recognised that in the past.
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104. It seems to me that the further evidence does mean that, applying the principles set out
in Grooms v Toohey, on the whole of the evidence now before me, the sentence can
be seen in the new light as manifestly excessive.
105. It is important to recognise that an employer cannot, of course, dictate what sentence
must be imposed. That does not mean that the Court should not, in appropriate cases,
be informed of what economic constraints may be felt by employers. I have no doubt
that courts are robust enough to be able to make proper judgements based on facts but
without being improperly constrained by the views of employers.
106. In my view, Mr Atmore has made out his case for upholding the appeal.
Disposition
107. There was no challenge to the other aspects of the sentence imposed. The statutory
stay under s 216 of the Magistrates Court Act meant that, from 9 February 2016, when
Mr Atmore lodged his appeal, his sentence has been stayed, though he will have
served 13 days of that period.
108. In my view, this period of 13 days should be taken into account in the final orders to be
made. I cannot, however, backdate a Good Behaviour Order and do not consider, in all
the circumstances, that for Mr Atmore, in effect, to serve the 13 days again will be
inappropriate, given the re-sentencing of the disqualification period.
109. As to the period during which Mr Atmore is to be disqualified from holding or obtaining
a licence, I consider that a period of two years is an appropriate period in all the
circumstances.
110. That disqualification, however, must take into account the period of 13 days between
when he was sentenced and when the stay occasioned by the Notice of Appeal
commenced. Further, under s 35 of the Alcohol and Drugs Act, the period during which
that was in force, namely from 25 November 2015 to 27 January 2016, is to count
towards the suspension.
111. It has now become desirable on an appeal such as this for the Court to make a
declaration as to the actual date on which the disqualification ends so that there can be
no confusion in the records of the Road Traffic Authority. See Hugg v Driessen (2012)
261 FLR 324 at 333 [69]; Irving v Head (2016) 75 MVR 13 at 25 [109]. Accordingly, I
will make an appropriate declaration as to when the period of disqualification will end,
subject to any submissions of the parties.
112. I propose, therefore, to make, subject to any submissions to the contrary, the following
orders:
1.
The appeal be upheld.
2.
The conviction for driving as a repeat offender with the Level 4 prescribed
concentration of alcohol be confirmed.
3.
The sentences, including the disqualification from holding or obtaining a driver
licence, be set aside.
4.
Mr Atmore be sentenced to imprisonment for three months from today.
5.
That sentence be suspended today for two years.
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6.
Mr Atmore be required to sign an undertaking to comply with the offender’s Good
Behaviour Obligations under the Crimes (Sentence Administration) Act
2005 (ACT) for 18 months with the following conditions:
(a)
a probation condition that he accept the supervision of the Director-General
or her delegate for 12 months or such lesser period as the person
supervising him considers appropriate and that he obey all reasonable
directions of the person supervising him; and
(b)
a condition that he participate in such counselling and treatment for alcohol
misuse and mental health issues including but not limited to participation in
Alcoholics Anonymous and continuing with psychological counselling under
his Mental Health Care Plan and such other treatment or counselling for
alcohol misuse and mental health issues as may be reasonably directed by
the person supervising him.
7.
Mr Atmore be disqualified from holding or obtaining a driver licence for a period of
two years.
8.
Having regard to the periods of time required to be taken into account, it is
declared that the disqualification of Mr Atmore from holding or obtaining a driver
licence will end on 28 June 2018 and, under s 73T of the Road Transport (Driver
Licensing) Regulation 2000 (ACT), he can apply for a probationary licence on
28 June 2017.
I certify that the preceding one hundred and twelve
[112] numbered paragraphs are a true copy of the
Reasons for Judgment of his Honour Justice
Refshauge.
Associate:
Date: 12 September 2016
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