Vasquez v Hooper [2009] ACTSC 27 (16 March 2009)

Last Updated: 19 May 2009

JOSE CERDAN VASQUEZ v LISA JANE HOOPER

[2009] ACTSC 27 (16 March 2009)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 51 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 16 March 2009

IN THE SUPREME COURT OF THE )

) No. SCA 51 of 2008

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JOSE CERDAN VASQUEZ

Appellant

AND: LISA JANE HOOPER

Respondent

ORDER

Judge: Higgins CJ

Date: 16 March 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The sentences imposed by the learned magistrate be reimposed.

2. The sentence of imprisonment date from 3 February 2008, and be suspended from today upon entry into a conditioned good behaviour order for a period of 12 months.

3. The licence suspension made by the learned magistrate be confirmed.

1. Mr Vasquez appeals to this court against a sentence imposed upon him on 11 June 2008 by her Honour Magistrate Campbell in the ACT Magistrates Court. The circumstances of the particular offences are, of course, the same, being a person who was disqualified. Mr Vasquez drove a vehicle at the behest of his then employer and regrettably was also under the influence of liquor to the extent that he returned a blood alcohol reading of 0.128. He did plead guilty at apparently an early opportunity. He was apparently remorseful for his conduct, and he presented documents which indicated that he was a person who had been in full time employment over the relevant period of time.

2. As I say, he expressed remorse in a letter to the magistrate. There was a presentence report which indicated that he had felt pressure to drive because his employer had requested him to do so. It says he was reluctant to refuse and foolishly drove his employer’s vehicle. It would have been foolish under any circumstances, but particularly when he had six previous convictions for driving with a prescribed concentration of alcohol and a number of convictions for driving whilst his licence was either non existent or suspended.

3. In those circumstances, it was probably not surprising that her Honour thought that the only response was to impose upon Mr Vasquez a sentence of imprisonment. I will say at this point, at least part of which should be served, however, her Honour required the whole of it to be served. Whether or not she turned her mind to whether part of it could be suspended, I do not know, but in any event it was not and Mr Vasquez now appeals to this court. Upon the hearing of this matter, Mr Slattery, who is his current employer, and his previous employer, gave evidence.

4. As a result of that, I understand him to have a high opinion of Mr Vasquez generally and Mr Slattery obviously regards Mr Vasquez as important in the operation of his business. I can understand that. It must be said that apart from these matters of drink driving, Mr Vasquez does not have anything adverse recorded against him. The problem is that six previous drink driving offences and a number of drive while disqualified offences is, relevantly, a very serious burden to have to bear when you are asking a court to exercise leniency.

5. As I have already indicated in argument, there is little one can say about the actual sentences that were imposed. The only question that arises is whether they either then, ought to have been, or in the light of the information now before me should be, suspended as to part of them. It is certainly the case that, if they were, there would need to be fairly tight conditions imposed on Mr Vasquez, particularly centring around his consumption of intoxicating liquor. It is a fine line, and it seems to me that Mr Vasquez, perhaps happily for him, falls on the correct side of it.

6. I propose in the light of the information, as I say, that is now before me, to direct that the sentences imposed upon him be first reimposed. The sentences of imprisonment to date from 3 February 2008, but to be suspended as from today upon him entering into an order to be of good behaviour, condition in the sum of $1,000. First, that he be of good behaviour for a period of 12 months from today, second, that he continue to reside during that period at 1 Victoria Street Merrylands, New South Wales and not change that address without application to this court on at least 24 hours notice to the ACT Director of Public Prosecutions.

7. During that time, and I will emphasise this, he is to abstain completely from the use of intoxicating liquor, he is to report to the officer in charge of the Merrylands Police Station each Wednesday between the hours of 8 am and 8 pm and submit as and when required to breath analysis. He is to continue his employment with Mr Slattery at Superb Clean Pty Ltd and if he needs to change that employment, is to do so only after application to this court to approve his subsequent employment conditions, again, on at least 24 hours notice to the ACT Director of Public Prosecutions.

8. I also confirm the orders made by her Honour suspending his licence to drive, but I do not alter the date from which those suspensions are to take place.

9. In addition Mr Vasquez is to submit, during the period of the recognisance, to the supervision of the Chief Executive of Corrective Services of the Australian Capital Territory and obey all reasonable directions of the Chief Executive of Corrective Services, or such person or persons whom the Chief Executive may from time to time appoint for the purpose. That supervision can and will include requiring Mr Vasquez to attend for counselling or other treatment, or attend such programs as may be deemed appropriate to address the issue of alcohol consumption.

10. Mr Vasquez, that order will be transferred to New South Wales, where you live, and the Probation and Parole Service of New South Wales will arrange for your ongoing supervision. However, when you leave here today after entering into that good behaviour order, you will attend upon Eclipse House in London Circuit in this territory, across the hill from here, with a view to arranging such information, or giving such information, as they need and accepting such directions as they may give for you to undertake that ongoing supervision.

11. No drinking, even at home. In addition, you are required to attend a police station once a week where they might require you to submit to a breath test and if you turn positive for that, back here, or back in the Magistrates Court. If you breach an order of that kind, you can expect to serve the suspended sentence.

12. I need hardly tell you Mr Vasquez that if you drove whilst disqualified, even if you were not under the influence, that would also be a very serious breach of the good behaviour order. You have got no history of any other type of offences, but you just need to watch yourself in those particular areas.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 24 March 2009

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: Ms K Mackenzie

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

Date of hearing: 16 March 2009

Date of judgment: 16 March 2009