A teenager who drink-drove, evaded police and crashed his car has lost a Supreme Court appeal to have his convictions quashed, despite a judge finding the magistrate who sentenced him made legal errors.
Justice Stephen Estcourt ruled Magistrate Chris Webster had failed to properly consider his power to spare the teen a conviction and his comments suggested a “closed mind” on the issue.
The teen was 17 and on a provisional licence when he drank half a litre of white wine and drove to pick up friends on February 21. He evaded police and crashed.
He later went to a police station with his father, where he returned a breath alcohol reading of 0.071, above the zero limit for provisional drivers and the 0.05 limit for fully licensed drivers.
He pleaded guilty to drink-driving as a provisional driver and evading police.
On March 24, Webster imposed the minimum penalties of nine months’ disqualification and $2,465 in fines. He also recorded convictions on both charges.
The teen did not challenge the penalties, only the convictions, arguing the magistrate’s comments during sentencing showed he had misunderstood the discretion available to him.
Under the Youth Justice Act, magistrates can choose not to record a conviction against a young offender.
They must give the young person’s rehabilitation more weight than any other single factor.
His lawyer told the court the teen had acted on impulse, had since started a casual job and that his parents had confiscated and wrecked his car.
During those submissions, Webster commented on the option of not recording convictions.
“We don’t do that for traffic matters. Well, I certainly don’t. I’ve never done one,” he said.
He questioned the point of the penalty system if it was not applied equally.
“… Isn’t the whole point of having a regime of points and minimum penalties, is everybody gets treated the same? A judge or a doctor, an unemployed person, they all – they all get exactly the same,” he said.
He also said: “Magistrates don’t have to worry about discretion etc… There is no discretion for – only above the minimum.”
Estcourt said the “very experienced magistrate failed on this occasion to fully and properly interrogate the nature and purpose of the discretion that was available to him”.
He said Webster’s comments would cause a “fair-minded observer” to think “he had a closed mind as to the role of the power not to record a conviction”.
But Estcourt said convictions were still an “entirely appropriate” outcome in “an unexceptional case of a relatively serious breach” of drink-driving laws.
He found there had been no substantial miscarriage of justice and dismissed the appeal on September 25.
