Barac v Thexton [2008] ACTSC 137 (24 November 2008)

Last Updated: 23 December 2008

MICHELLE BARAC v TRISTAN THEXTON

[2008] ACTSC 137 (24 November 2008)

APPEAL AND NEW TRIAL – criminal law – appeal from decision of the Magistrates Court of the ACT – grounds of appeal – whether jurisdiction to appeal – Magistrates Court Act 1930 (ACT) Div 3.10.2.

CRIMINAL LAW – appeal from decision of the Magistrates Court of the ACT – severity of sentence – disqualification from holding a licence.

APPEAL AND NEW TRIAL – appeal from decision of the Magistrates Court of the ACT – further evidence – Court Procedures Rules 2006 (ACT) r 5193 – need for compliance.

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

Magistrates Court Act 1930 (ACT), s 207, Div 3.10.2

Legislation Act 2001 (ACT), s 133,

Crimes (Sentencing) Act 2005 (ACT), ss 16(2), 18, 29, Pts 3.3, 3.6

Road Transport (General) Act 1999 (ACT), s 67(2)

Court Procedures Rules 2006, r 5193

Evans v Shiels (2004) 185 FLR 1

Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172

Browne v The Queen [2006] ACTCA 15

Green v Webb [2006] WASC 71

Noth v McDonald (1988) 35 A Crim R 303

Fitzgerald v Police (SA) (2000) 31 MVR 97

Learwood v Drinkwater (1986) 43 SASR 547

Porter v Prestwood (1983) 33 SASR 75

Allen v Bates (1979) 20 SASR 575

Watling v Watson; Ex parte Watson [1966] QWN 41

Satterthwaite v Prestwood (1977) 17 SASR 468

R v Leaf-Milham (1987) 47 SASR 499

Boeyen (1990) 50 A Crim R 482

George (VicCCA, 21 September 1990, unreported)

Taylor v Samuels (1977) 16 SASR 266

Burton (1990) 45 A Crim R 314

R v Calder; Ex parte Attorney-General [1987] 1 Qd R 348

Picken v O’Sullivan [1952] SASR 184

Porricello v Samuels (1976) 14 SASR 83

Marr v Rowbottom (1989) 39 A Crim R 113

Shirley (1969) 53 Cr App R 543

Manning v Bennett [1971] Tas SR 15

R v Bazley (VSCA, Phillips CJ, Batt JA and Vincent AJA, 21 August 1997, unreported)

R v North [1971] RTR 366

Brooks v Baldock (1974) 9 SASR 591

R v Hicks (1987) 45 SASR 270

McGregor v Maguire [2008] ACTSC 7

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 73 of 2008

Judge: Refshauge J

Supreme Court of the ACT

Date: 24 November 2008

IN THE SUPREME COURT OF THE )

) No. SCA 73 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MICHELLE BARAC

Appellant

AND: TRISTAN THEXTON

Respondent

ORDER

Judge: Refshauge J

Date: 24 November 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.
2. The conviction is confirmed.
3. The sentences be set aside.
4. A fine of $800 be imposed and to be paid to the Magistrates Court within 3 months of today.
5. The Appellant be disqualified from holding or obtaining a licence to drive a motor vehicle for 6 months.

1. Ms Michelle Barac, the appellant, was convicted under s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act), of an offence commonly known as “drink-driving” or “PCA” (Prescribed Concentration of Alcohol). On 10 June 2008 Mr Burns, Magistrate, convicted and fined her $700 and disqualified her from holding or obtaining a licence to drive a motor vehicle for two years. Ms Barac appeals against that sentence.
2. Ms Barac sought leave to appeal out of time. This was granted, though, curiously, no time was limited within which this was to be done. The appeal was commenced by filing a notice of appeal on 4 September 2008.
3. Although the appeal was against the whole of the sentence, as noted in the notice of appeal, it was clear in the appellant’s written submissions and in the oral submissions made by Mr P Edmonds, who appeared for the appellant, that the focus of the appeal was on the period of disqualification.
4. The facts which led to this offence are in a relatively short compass. Police observed Ms Barac’s car driving West along Ginninderra Drive on Saturday 8 March 2008 at 4.30 am. The police car, which had been stationary at the time the police officers noted Ms Barac’s car, then followed her car and stopped it shortly after it turned right into Baldwin Drive.
5. In evidence before me Ms Barac said that she had been celebrating that night the first birthday of her child. It seems odd to me that she would have been doing that until 4.30 am, but that is not for me to judge. Ms Barac said that she had about one alcoholic drink an hour while she was celebrating. She is of slight build so the level of blood alcohol concentration she ultimately returned is perhaps not inconsistent with that. She did say she thought she might have been over the blood alcohol limit but decided she was not too affected to drive.

6. When police spoke to Ms Barac they could smell intoxicating liquor on her breath and so subjected her to a screening test. As a result of that she was taken into custody and transported to Belconnen Police Station where she was required to provide a sample of her breath for breath analysis. The results of that analysis was that she had 0.110 grams of alcohol per 100 millilitres of blood, commonly known as a reading of 0.110%. Her eyes were said to be watery, her speech was slow and her balance and walk were unsteady. She appeared moderately affected by alcohol.
7. In November 2003, she had been fined $300 and disqualified from holding or obtaining a licence for 3 months for a similar offence, though with a lower reading of 0.075%.
8. Appeals from the Magistrates Court.

Section 207 of the Magistrates Court Act 1930 (ACT) gives the Supreme Court appellate jurisdiction in relation to decisions of the Magistrates Court under that Act but only to certain types of appeals including, relevantly, those to which Div 3.10.2 (Appeals in criminal matters) apply.

9. Section 208 of that Act sets out the appeals to which the division applies. The only relevant provision in that section is as follows:

(1) Each of the following appeals is an appeal to which this division applies:

...

(e) an appeal from an order of the court under any of the following provisions of the Crimes (Sentencing) Act 2005:

(i) part 3.2 (Sentences of imprisonment);

(ii) part 3.3 (Non-custodial sentences);

(iii) part 3.4 (Non-association and place restriction orders);

(iv) part 3.5 (Deferred sentence orders);

(v) part 3.6 (Combination sentences).

A question arose as to whether this appeal was encompassed within that provision. It certainly was not authorised by any other provision in that section.

10. As noted above, Ms Barac pleaded guilty to an offence under s 19 of the Alcohol and Drugs Act. The relevant part of that section provides:

(1) A person who—

(a) has been the driver of a motor vehicle on a public street or in a public place; and

(b) has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;

commits an offence punishable, on conviction, by a penalty ascertained in accordance with s 26.

11. The allegation was that Ms Barac had what is known as a level 3 concentration of alcohol in her blood, namely 0.08 grams or more but less than 0.15 grams: s 4C of the Alcohol and Drugs Act. She was, for the Act, a repeat offender, namely a person who is convicted of, inter alia, an offence under s 19 and who has been convicted or found guilty of, inter alia, such an offence within five years before being convicted again: s 4D of the Alcohol and Drugs Act. She was not a special driver: s 4B of the Alcohol and Drugs Act.
12. The relevant penalty provision, as noted in s 19, is in s 26 of the Alcohol and Drugs Act, which provides:

(2) If a person other than a special driver is convicted of an offence against section 19(1) and the convicting court finds that the concentration of alcohol in the person’s blood was at level 2, 3 or 4, the person is punishable—

(a) for a first offender—by the maximum penalty specified in table 26, column 3 opposite the relevant level; and

(b) for a repeat offender—by the maximum penalty specified in table 26, column 4 opposite the relevant level.

Table 26

column 1 item	column 2 blood alcohol concentration level	column 3 maximum penalty — first offender	column 4 maximum penalty — repeat offender
1	level 1	5 penalty units	10 penalty units
2	level 2	5 penalty units	10 penalty units
3	level 3	10 penalty units, imprisonment for 6 months or both	10 penalty units, imprisonment for 6 months or both
4	level 4	15 penalty units, imprisonment for 9 months or both	20 penalty units, imprisonment for 12 months or both

13. As will be seen, the maximum penalty includes a period of imprisonment for a Level 3 offender but not for a Level 1 or Level 2 offender. A penalty unit for an individual is $100: s 133 of the Legislation Act 2001 (ACT).
14. In addition, ss 32 and 33 of the Act provide for an automatic driver licence disqualification upon conviction, subject to an order of the court. Thus, s 33 provides:

(3) If a court convicts a person other than a special driver of an offence against section 19 (1) and finds that the concentration of alcohol in the person’s blood was at level 2, 3 or 4, the person is automatically disqualified from holding or obtaining a driver licence for—

(a) the period mentioned in the item applying to that level in table 33, column 4; or

(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item—the shorter period.

Table 33

column 1 item	column 2 blood alcohol concentration level	column 3 minimum disqualification	column 4 default disqualification
1	level 1	3 months	12 months
2	level 2	3 months	12 months
3	level 3	6 months	3 years
4	level 4	12 months	5 years

15. To see whether the order of the Court disqualifying Ms Barac from holding or obtaining a driver’s licence is subject to an appeal as set out in s 208(1) of the Magistrates Court Act requires an examination of the relevant parts of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). None of Pt 3.2 (Sentence of Imprisonment), Pt 3.4 (Non-association and place restriction orders), nor Pt 3.5 (Deferred sentence orders) applies in this case. Part 3.3 (Non-custodial orders) includes the following orders: good behaviour orders, fines, non-conviction orders, including “ancillary orders” (which includes “disqualification or loss or suspension of a licence or privilege”: s 18 of the Sentencing Act and reparation orders.
16. Clearly the fine was an order against which Ms Barac could appeal. The question is whether the licence disqualification was also an order against which she could appeal. It is, of course, not an order made under the Sentencing Act because it is made under the Alcohol and Drugs Act. Indeed, were the court not to have made an order at all, then there would be no order of the court but an automatic statutory disqualification. In my mind, the real question arises as to whether, in those circumstances, there is a power to appeal against such an order.
17. To return to Pt 3 of the Sentencing Act, there is a reference in that part to “Driver licence disqualification orders - motor vehicle theft”: s 16. As the heading to that section summarises, this only applies where an offender is convicted or found guilty of an offence against a Territory law involving the theft of a motor vehicle or against the Criminal Code 2002 (ACT), s 318 (Taking etc motor vehicle without consent).
18. I note in passing that the definition of “driver licence disqualification order” in the dictionary to the Sentencing Act refers curiously to s 17(2). It seems crystal clear that that is an error and should refer to s 16(2). It may be that this is a typographical error or correction to a reference to the law (see s 116(1)(a) or (b) of the Legislation Act 2001 (ACT)) and parliamentary counsel may be able, under s 114 of the Legislation Act 2001 (ACT), to correct that when the next republication is made.
19. As noted above at [15], there is a reference to “disqualification or loss or suspension of a licence or privilege”. This is in s 18 of that Act and refers to ancillary orders that can be made when a non-conviction order is made. It does not apply here, for Ms Barac was convicted of the offence.
20. Accordingly, I can see no relevant reference in Pt 3.3 to the imposition of a relevant licence disqualification. The order of disqualification is, therefore, not an order under Pt 3.3 of the Sentencing Act. Thus, no appeal from the disqualification could apparently be taken in reliance on that part.
21. Part 3.6 of the Sentencing Act, also referenced to in s 208(1)(e) of the Magistrates Court Act 1930 (ACT), however, refers to combination sentences and s 29 provides:

(1) If the offence is punishable by imprisonment, the court sentencing the offender may impose a sentence (a combination sentence) consisting of two or more of the following orders:

...

(d) a fine order;

(e) a driver licence disqualification order;

...

(j) an order (however described) imposing another penalty available under any other Territory law.

22. Clearly, the offence was punishable by imprisonment and a fine order was made. For the reasons noted above, the reference to “a driver licence disqualification order” does not apply but it does seem to me that the order actually made by the Magistrate, whereby his Honour reduced the period of disqualification, was an order within the meaning of s 29(1)(j). Accordingly, the appeal is competent.
23. It is relevant to note that, in addition to the real question as to whether there is an appeal against an automatic suspension where the court does not take any action, it would appear that there may be no jurisdiction to appeal against the disqualification where the reading was a Level 2 reading (there is no disqualification for a driver with a Level 1 reading, unless a special driver). Since there is no penalty of imprisonment, s 29 of the Sentencing Act would not apply. That is not a matter which I have to decide in this appeal but is, perhaps, a matter which may require further consideration by the legislature.
24. It may be just possible to call in aid the now discredited (see Evans v Shiels (2004) 185 FLR 1) decision in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101. It would be a pity if the court, in order to do justice had to revert to a decision such as Kelly v Apps, to deal with what might be an injustice either by virtue of a period of disqualification or,

indeed, a failure by a court to make another order as entitled to under ss 32 and 33 of the Alcohol and Drugs Act.

25. Evidence on the Appeal.

Ms Barac sought to adduce further evidence on the appeal. She had not, however, complied with r 5193 of the Court Procedures Rules 2006 (ACT) which requires of an application to adduce further evidence under s 214 of the Magistrates Court Act 1930 (ACT) that:

(2) The application must be supported by an affidavit stating -

(a) the grounds of the application; and

(b) any evidence necessary to establish the grounds of the application; and

(c) the evidence that the applicant wants the Supreme Court to receive.

(3) Not later than 21 days before the day set for the hearing of the appeal, the applicant must file the affidavit in the Supreme Court and serve a stamped copy on the other party to the appeal.

26. The reasons for such a provision are clear. It gives the other party a proper opportunity to consider its attitude to the adducing of that evidence and prepare for any argument if it seeks to oppose it, knowing what the evidence will be. It also permits the other party an opportunity to make any necessary inquiries that may be required in respect of that evidence. Finally, it allows the other party the opportunity to have prepared its submissions knowing the full extent of the evidence that will be before the appeal court.
27. I note that, in this case, the notice of appeal did refer to a foreshadowed application to adduce further evidence. It does not appear that the respondent sought to remind the appellant of the requirements of r 5193. Ms Barac did not, however, condescend to

any degree of particularity in her written submissions about the evidence so as to give even that much notice of what was sought to be additionally adduced.

28. In the event, after Mr Edmonds explained the scope of the evidence proposed to be adduced and I agreed to give Ms S Jowitt, who appeared for the respondent, an appropriate adjournment after hearing the evidence so that she could deal with the evidence adduced, Ms Jowitt could point to no specific prejudice and I gave leave to adduce the evidence at least by dispensing with the strict requirements of this rule as I had power to do under r 6 of the Court Procedures Rules 2006.
29. Ms Barac gave evidence that she and her de facto partner had a child who was 20 months old. Her partner owned a business and she was an integral part of it. While much of her work was administration, she had to deliver plans in person to local councils, do the banking and run errands, including occasionally delivering equipment to sites. She estimated that she was out of the office about three days per week.
30. As she had lost her licence, her partner had to do these jobs. It meant that he had to do his other work after hours which meant he rarely arrived home until well after their child had gone to bed. It was significantly affecting their relationship and his relationship with his child. Ms Barac also noted that the business was not able to afford additional staff or to pay the present staff additionally for this work. She also found that it made it extremely difficult to go shopping, continue with swimming lessons for her child or engage in other planned activities.
31. She was concerned that buses had no safety belts nor specific seats for toddlers and so her child was at some risk. Her concern for safety was laudable, but seemed a little simplistic and blinkered considering the risk she had put herself and other road users in by driving with such a relatively high blood alcohol reading. She had tried using taxis but found them unreliable, especially as she needed a taxi with a suitable child seat.
32. Of course, the disqualification is hardly meant to be free of impact and inconvenience for the offender. Nevertheless the degree of impact has to be considered in the whole context of the punishment imposed.
33. Ms Barac had pleaded guilty at the first opportunity. The matter was delayed only because she had intended to seek a restricted licence, but as a repeat offender that option was not available to her (s 67(2) of the Road Transport (General) Act 1999 (ACT)) and the matter was dealt with to finality on the next occasion.
34. Before the Learned Magistrate, Ms Barac had appeared for herself, obviously unaware of the serious consequences for her. As would be expected, the hearing was quite short.
35. Initially, it appears Ms Barac was unaware that she could not obtain a restricted licence. The transcript records as follows:

HIS HONOUR: Now, Ms Barac, there is one charge alleging a level 3 drink driving offence on 8 March this year as a repeat offender. I understand that you want to plead guilty to that offence. There is also an application for a restricted licence, but it seems to me that as a repeat offender you would not be eligible for a restricted licence, are you aware of that?

MS BARAC: I am now, but I take my chances.

HIS HONOUR: Well, it is not a question of take one’s chances, it is the fact that the legislation provides that I cannot give you one.

The facts were then read and the transcript then records the following:

HIS HONOUR: Yes. Stand up please, Ms Barac. What do you want to say about this matter?

MS BARAC: Just that I apologise and I can not really say much else. I am just ashamed I did it again, just stupidity.

HIS HONOUR: You are 23 now?

MS BARAC: 23, yes.

HIS HONOUR: How long have you held a driver’s licence?

MS BARAC: A full licence? Since 17, since I had my Ps.

HIS HONOUR: So about six years. What work do you do?

MS BARAC: I work in an office, so I work for [her husband’s business] in Canberra, but also I do a lot of running around for them.

HIS HONOUR: You realise you are going to be without a driver’s licence for a significant period as a consequence of a conviction in this matter? How is that going to affect your employment?

MS BARAC: I will just organise - just forget the running around. It is not really going to affect it. I will still have a job, it will just limit what I can do.”

36. This is, of course, different from what Ms Barac said in evidence before me. She explained that by saying that she had been taken off-balance by the news that she could not get a restricted licence and she did not really understand the consequences for her.
37. On the previous occasion, she had no child to look after and she had been able to manage with buses and taxis and, in the circumstances of a short hearing, the full implications of her situation and the likely extent of the disqualification had simply not sunk in.
38. Such additional evidence is admissible under s 214 of the Magistrates Court Act. Subsection 214(4) provides:

If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if -

(a) it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and

(b) the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

This is similar to the test propounded in CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172. See Browne v The Queen [2006] ACTCA 15.

39. The Learned Magistrate inquired of Ms Barac what effect the loss of licence would have. That is a relevant matter. His Honour inquired about work but neither he nor Ms Barac thought about the consequences for her also with a toddler. Clearly, those

are both relevant matters. The actual circumstances do afford a question of whether the period of disqualification was excessive.

40. I found Ms Barac to be credible; her evidence was admissible. The evidence was clearly not adduced in the proceedings before the Learned Magistrate and I found there was an explanation for the failure to do so.
41. There can be no criticism of the Learned Magistrate. I respectfully adopt what fell from McKechnie J in Green v Webb [2006] WASC 71 at [11]:

Magistrates Courts are busy courts. Magistrates, daily, must deal with many matters involving different offences and different offenders. In general, a Magistrate does not have the luxury of much time for consideration or much opportunity to completely expose the reasoning process. It is inevitable that even with the most careful Magistrate, from time to time, errors will occur. In recognition of this fact, the Court in its supervisory appellate jurisdiction takes perhaps a more lenient approach to an appellant, sometimes allowing an appellant to supplement, by way of affidavit, what was probably an inadequate plea in mitigation before the Magistrate. However, there are limits. At its essence the appeal is governed by the rules of law and error must be shown.

42. I admit the additional evidence. See, though in somewhat different circumstances, Noth v McDonald (1988) 35 A Crim R 303 at 308.
43. The Appeal - The Law.

Despite what I have noted above about the issue of whether the order for disqualification can be the subject of appeal, it is clear that the licence disqualification is part of the sentence: Fitzgerald v Police (SA) (2006) 31 MVR 97 at 100. Thus, to determine whether the sentence is manifestly excessive, a court must look at the totality of the pecuniary or other penalty as well as the disqualification: Learwood v Drinkwater (1986) 43 SASR 547 at 549-50; Porter v Prestwood (1983) 33 SASR 75 at 79.

44. The grant of a licence to drive is, of course, a privilege and not a right: Allen v Bates (1979) 20 SASR 575 at 579; Watling v Watson, Ex parte Watson [1966] QWN 41.
45. The loss of that privilege is, however, often very significant. As Zelling J said in Satterthwaite v Prestwood (1977) 17 SASR 468 at 471:

It should be borne in mind that for the average Australian in full employment the fine, although inconvenient, is no real sanction against driving whilst under the influence of liquor. The only real sanction is the licence suspension.

46. Suspension or disqualification is a quite personal deterrent: R v Leaf-Milham (1987) 47 SASR 499 at 506.
47. Licence suspension has, also, a protective aspect. In Boeyen (1990) 50 A Crim R 482 at 484-5, the Victorian Court of Criminal Appeal repeated with approval what Crockett J had earlier said in George (VicCCA, 21 September 1990, unreported):

... the Court should have regard to two separate considerations. They are first the need for the period of cancellation itself to serve its part as a punitive element in the context of the total punishment imposed, and secondly, the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender. Those two considerations have each to be given such weight as the Court considers is appropriate bearing in mind it is their combined effect which will determine the ultimate length of the disqualification.

See also Porter v Prestwood at 79.

48. As part of the sentencing then, the period of disqualification which is considered by the court must include the determining of the personal circumstances of the offender along with all other relevant matters connected with the offender and the offence, including good character and extenuating circumstances under which the offence was committed: Fitzgerald v Police (SA) at 100; Taylor v Samuels (1977) 16 SASR 266 at 283-4. That is to say, the period of disqualification must fit the offending and the personal circumstances of the offender: Noth v McDonald at 310.
49. Thus, family circumstances, such as the need to look after children, is a relevant factor: Green v Webb at [15]-[16]; Burton (1990) 45 A Crim R 314 at 316. In my view, too, the availability or not of appropriate public transport is a proper consideration to take into account: R v Calder; Ex parte Attorney-General [1987] 1 Qd R 348 at 353-4.
50. Interestingly, there are certain strong statements in South Australia, especially in some early cases that state that the courts must disregard the effect of a disqualification of a licence on the employment of an offender. See, for example, Picken v O’Sullivan [1952] SASR 184. This position was confirmed as recently as in Porricello v Samuels (1976) 14 SASR 83 where the loss of employment was held irrelevant to whether a disqualification should be imposed or not. See, to similar effect, Marr v Rowbottom (1989) 39 A Crim R 113 at 118-9, though, in that case, at least allowing loss of employment as a relevant circumstance to be taken into account.
51. This view has not prevailed and, indeed, was not generally followed elsewhere. In the UK, the courts have considered employment when determining the length of disqualification of a licence: Shirley (1969) 53 Cr App R 543 at 545. In Tasmania, loss of employment through disqualification of licence was regarded as long ago as 1971 as an undue hardship: Manning v Bennett [1971] Tas SR 15 at 20. In Victoria, Batt JA said in Bazley (VSCA, Phillips CJ, Batt JA and Vincent AJA, 21 August 1997, unreported), though in the context of a penalty of imprisonment:

In determining the period of disqualification or suspension, regard should be had to its effect on the offender’s rehabilitation. This is especially so where there is no need to protect the public. A period of disqualification or suspension extending beyond the date of the offender’s release from custody may well be counterproductive, for it will, or may, make it difficult for the offender to attend or even to obtain employment.

52. Similarly, in George, Crockett J referred to, “the need to examine the degree of dependency, particularly economic dependency, of the offender or the possession of a driver’s licence”.
53. Even in South Australia, the matter is now in line with the other states. In Noth v McDonald, von Doussa J said at 308, “The likely impact of a long period of licence disqualification on the employment prospects of a young man is an important factor to be taken into account in fixing a penalty...”
54. This perhaps recognises what UK courts have said where, in R v North [1971] RTR 366, the court referred to the need to recognise that “driving is almost essential for so many people”. That, of course, makes cancellation an important tool in the courts’ armoury when they attempt to reduce the shocking road toll by imposing appropriate penalties
55. Nevertheless, whilst one cannot increase above its proper level one part of a sentence as a “trade off” from reducing another part below its proper level, there is some opportunity to balance a sentence by ensuring that while each part is within a proper range the effects on one part can be ameliorated and the balance maintained by a proper adjustment of the other: Allen v Bates at 578; Brooks v Baldock (1974) 9 SASR 591 at 593; R v Hicks (1987) 45 SASR 270 at 273.
56. Finally, the structure of the disqualification penalty has given me some pause. The disqualification provision is not expressed as though the specified period is in fact a maximum, as, for example, is the period of imprisonment or the amount of the fine. Rather it is what might be called the ordinary or default (the word actually used in the legislation) period unless a court otherwise orders in which case the period can be reduced but to no less than a specified minimum. There is, regrettably, nothing in the explanatory statement of the Act which introduced this provision that assists.
57. I was informed by Mr Edmonds, however, and it was not challenged by Mrs Jowitt, that in the Magistrates Court, where these matters are generally dealt with, the court there almost always makes an order reducing the period of disqualification and rarely allows the automatic statutory disqualification to take effect.
58. In this case, I do not have to decide how to approach what I find to be a difficult question of how strictly to construe this provision. I note that in McGregor v Maguire [2008] ACTSC 7, Higgins CJ did refer to the principles concerning maximum penalties, but his Honour did note at [28]-[29]:

There is also the important qualification that relevant legislation may dictate a particular approach.

So it is with the [Alcohol and Drugs] Act. It does not require the sentencer to impose a particular period of disqualification. For this kind of case, a disqualification of three years follows if no other order is made. However, the sentencing court may reduce that penalty to not less than a particular figure. The learned magistrate chose to exercise his discretion so to do. That is an approach required by the statute and is not erroneous.

59. It seems to me that at the very least the court can make an order reducing the period of disqualification by reference to the factors I have referred to above. Whether other factors, such as the level of the reading, the personal circumstances of the offender

and the circumstances of the offence are relevant is a difficult question. They may be, but in this case I do not have to decide and I do not do so.

60. Conclusion on Appeal.

Having regard to the evidence I have heard, it seems to me that the personal hardship imposed on the appellant, through her family and work situation, is such that a greater reduction in the disqualification period is proper. The Learned Magistrate reduced the period by one third when there was only evidence of some limited effect on her employment. Given the level of hardship, some greater reduction is appropriate.

61. I note that the maximum fine is the same for a first offender and a repeat offender. Thus, fines for repeat offenders should be at the upper end of the range.
62. I also note that by virtue of s 216 of the Magistrates Court Act 1930 (ACT), the institution of the appeal stayed the licence disqualification. Ms Barac, however, gave evidence before me that she did not appreciate this and has not driven since her licence was disqualified on 10 June 2008. Thus the effect of this is that between 4 September 2008 and today she has not driven and has treated her position as though she were a disqualified driver.
63. Taking this into account, and given Ms Barac’s circumstances, I consider that I can reduce the licence disqualification to the minimum of six months. That will mean that she has from today three months and six days of further disqualification, that is to 2 March 2009, though she will have, by then, not been driving for a few days over eight months.
64. Given the reading, which was in the middle of the range for Level 3, the fact that she was a repeat offender and the circumstances of the driving, where there was no actual manner of driving which drew her to the attention of police, the distance she had travelled, including that her journey commenced in Civic where there would have been many cars and pedestrians, I consider that the total sentence will then be too lenient and so propose to increase the fine.
65. Accordingly, I:

(a) uphold the appeal;

(b) confirm the conviction;

(c) set aside the sentences and instead impose a fine of $800 to be paid within 3 months of today; and

(d) order that the period of disqualification from holding or obtaining a licence be reduced to the minimum period of 6 months.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 11 December 2008

Counsel for the Appellant: Mr Paul Edmonds

Solicitor for the Appellant: Paul Edmonds & Associates

Counsel for the Respondent: Mrs S Jowitt

Solicitor for the Respondent: Director of Public Prosecutions (ACT)

Date of hearing: 24 November 2008

Date of judgment: 24 November 2008