Aaron Schilg v Kyle Saltmarsh - [2013] ACTSC 181

HUMAN RIGHTS ACT 2004

AARON SCHILG v KYLE SALTMARSH
[2013] ACTSC 181 (29 August 2013)

APPEAL FROM MAGISTRATES COURT – Appeal against sentence – Appeal allowed
CRIMINAL LAW – Specific offences – ‘Burnout’
CRIMINAL LAW – Statutory interpretation - Meaning of ‘repeat offender’
CIVIL AND POLITICAL RIGHTS – Human rights – Right to fair hearing

Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 34
Human Rights Act 2004 (ACT), s 21
Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 5B, 10AA, 10B, 10D

Re Director of Public Prosecutions; Ex parte Lawler and Another (1994) 119 ALF 655
Theophanous v Commonwealth (2006) 226 ALR 602

REASONS FOR DECISION

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 14 of 2013

Judge: Higgins CJ
Supreme Court of the ACT

Date: 29 August 2013

IN THE SUPREME COURT OF THE       )
  )          No. SCA 14 of 2013
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:AARON SCHILG

Appellant

AND:KYLE SALTMARSH
Respondent

ORDER

Judge:  Higgins CJ
Date:  12 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal against the making of the forfeiture order be allowed. That order be substituted with an order that the vehicle be impounded for three months from 12 March 2013.

This was an appeal from an order made by Magistrate Boss on 12 March 2013 that a motor vehicle, being a Holden Commodore, be forfeited to the Territory (that is, the ACT). On 12 June 2013 I allowed the appeal against the making of that order and substituted an order that the vehicle be impounded for three months from that date. I indicated that reasons would be later published as the matter involved a question of statutory interpretation upon which a difference of opinion, I was told, has arisen. These are those reasons.

First, the foundational facts. The appellant, Aaron Schilg, was on 29 January 2013 charged by summons that he:

... on 26 December 2012, a repeat offender, being the driver of a motor vehicle, did burnout the vehicle on a road.

He was subsequently charged that he:

... on 18 January 2013, a repeat offender, being the driver of a motor vehicle, did burnout the vehicle on a road.

The appellant appeared in person on 12 March 2013 and entered a plea of guilty to each charge. For the first charge it appeared that the appellant had been depicted on a Facebook video, posted publicly, doing a “burnout” that is, revving the engine of the subject Commodore so that the tyres lost traction and spun so as to emit large plumes of smoke as the tread on the rear tyres burnt away.

The appellant attended on police when asked about it on 21 January 2013 and made full admissions not only as to that matter but also as to the second matter.

Prior to that date, on 18 January 2013, a road user had observed the appellant’s Commodore turning onto a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aaron Schilg v Kyle Saltmarsh

Details

AGLC: Aaron Schilg v Kyle Saltmarsh [2013] ACTSC 181
Case: [2013] ACTSC 181
Decision Date: 29 August 2013

CaseChat Overview and Summary

Aaron Schilg was appealing the sentence imposed by the Magistrates Court against him for a dangerous driving offence known as a ‘burnout’. The respondent, Kyle Saltmarsh, had been a party to the original proceedings but did not appeal the outcome. The court was required to decide whether the Magistrates Court had correctly interpreted the meaning of ‘repeat offender’ under the relevant legislation and whether the sentence imposed was appropriate. Additionally, the court had to consider whether the accused had been afforded a fair hearing, as guaranteed under the human rights framework.

The court found that the Magistrates Court had incorrectly interpreted the statutory definition of ‘repeat offender’, leading to an overly harsh sentence. The court determined that the term ‘repeat offender’ in the context of the legislation did not apply to Schilg, as the offence in question was not a repeat offence under the statute. Furthermore, the court found that the original sentence was manifestly excessive and not proportionate to the offence committed. The court also held that the accused had not been afforded a fair hearing due to procedural errors during the original proceedings.

The appeal was allowed, and the order for the forfeiture of the vehicle was substituted with an order that the vehicle be impounded for three months from 12 March 2013. The court emphasised the importance of correctly interpreting statutory definitions and ensuring that sentences are proportionate to the offence and that all parties are afforded a fair hearing.

Orders

Orders of the court

The appeal against the making of the forfeiture order be allowed. That order be substituted with an order that the vehicle be impounded for three months from 12 March 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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