Case Title:	Amos v McCarron (No 2)
Citation:	[2017] ACTSC 46
Hearing Date:	9 February 2017
DecisionDate:	15 February 2017
Before:	Refshauge J
Decision:	1. The convictions entered on 17 October 2013 of Adam Amos as a repeat offender driving whilst disqualified on 19 October 2012 and 28 December 2012 be confirmed. 2. The cancellation on 17 October 2013 of the Good Behaviour Orders made on 15 December 2011 be confirmed. 3. Adam Amos be re-sentenced for the offence of trafficking in heroin on 2 January 2011 to nine months imprisonment to commence on 20 December 2016. 4. Adam Amos be re-sentenced for the offence of driving on 25 May 2011 with more than the prescribed concentration of alcohol to three months imprisonment to commence on 20 December 2016. 5. Adam Amos be sentenced to two months imprisonment for the offence of driving while disqualified as a repeat offender on 19 October 2012 to commence on 20 August 2017. 6. Adam Amos be sentenced to three months imprisonment for the offence of driving whilst disqualified as a repeat offender on 28 December 2012 to commence on 20 September 2017. 7. The sentence be suspended from 15 February 2017 for two years. 8. Adam Amos be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a probation condition that he be under the supervision of the Director-General or her delegate for 12 months, or such lesser period as the person supervising him considers to be appropriate, and obey all reasonable directions of that person. 9. Adam Amos be required to report by 4:00 pm today, 15 February 2017, to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, ACT for the purposes of arranging probation supervision. 10. It be declared that, under s 32(5) of the Road Transport (Driver Licensing) Act 1999 (ACT), Adam Amos’ automatic disqualification from holding or obtaining a licence in respect of the offence of driving whilst disqualified as a repeat offender on 19 October 2012 commenced on 17 October 2013 and ended on 16 October 2015, and for the offence of driving whilst disqualified as a repeat offender on 28 December 2012 commenced on 17 October 2013 and ended on 16 October 2015.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – appeal against sentence imposed by Magistrates Court upheld – re-sentence – driving with a prescribed concentration of alcohol – drink driving – special driver – driving whilst disqualified – repeat offender – breach of Good Behaviour Orders – disqualification from holding or obtaining a licence – delay in sentencing – self reform – rehabilitation relevant to sentencing – general deterrence – suspended sentence
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), ss 7, 27, 33 Magistrates Court Act 1930 (ACT), ss 216, 216(1) Road Transport…

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 Amos v McCarron (No 2)

Details

AGLC: Amos v McCarron (No 2) [2017] ACTSC 46
Case: [2017] ACTSC 46
Decision Date: 15 February 2017

CaseChat Overview and Summary

Amos v McCarron (No 2) was a case heard by the Supreme Court of the Australian Capital Territory, where the appellant, Adam Amos, contested the sentences imposed by the Magistrates Court. Amos was convicted of driving while disqualified as a repeat offender, driving with more than the prescribed concentration of alcohol, and trafficking in heroin. Amos appealed the sentences, arguing that they were excessive and did not take into account his rehabilitation efforts and self-reform.

The court had to determine whether the sentences imposed by the Magistrates Court were appropriate, considering the nature of the offences, Amos’s history as a repeat offender, and the principles of general deterrence and specific deterrence. The court also needed to consider the delay in sentencing and the impact on Amos’s rehabilitation and reform efforts. Another issue was whether the cancellation of the Good Behaviour Orders was justified.

The court found that while the Magistrates Court had considered relevant factors, it had not adequately balanced them. The court held that the sentences were excessive and did not appropriately reflect Amos’s efforts at rehabilitation and self-reform. The court also found that the delay in sentencing had negatively impacted Amos’s ability to demonstrate his reform efforts. The court confirmed Amos’s convictions but varied the sentences to better reflect the circumstances of the case. The court also considered the need for general deterrence and the impact of Amos’s actions on the community.

The court ordered that Amos’s convictions be confirmed but varied the sentences to reflect his rehabilitation efforts and the principles of sentencing. The sentences were adjusted to reflect the appropriate balance between general deterrence, specific deterrence, and Amos’s reform efforts. The court also declared the period of Amos’s disqualification from holding or obtaining a licence.

Orders

Orders of the court

1. The convictions entered on 17 October 2013 of Adam Amos as a repeat offender driving whilst disqualified on 19 October 2012 and 28 December 2012 be confirmed.

2. The cancellation on 17 October 2013 of the Good Behaviour Orders made on 15 December 2011 be confirmed.

3. Adam Amos be re-sentenced for the offence of trafficking in heroin on 2 January 2011 to nine months imprisonment to commence on 20 December 2016.

4. Adam Amos be re-sentenced for the offence of driving on 25 May 2011 with more than the prescribed concentration of alcohol to three months imprisonment to commence on 20 December 2016.

5. Adam Amos be sentenced to two months imprisonment for the offence of driving while disqualified as a repeat offender on 19 October 2012 to commence on 20 August 2017.

6. Adam Amos be sentenced to three months imprisonment for the offence of driving whilst disqualified as a repeat offender on 28 December 2012 to commence on 20 September 2017.

7. The sentence be suspended from 15 February 2017 for two years.

8. Adam Amos be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with a probation condition that he be under the supervision of the Director-General or her delegate for 12 months, or such lesser period as the person supervising him considers to be appropriate, and obey all reasonable directions of that person.

9. Adam Amos be required to report by 4:00 pm today, 15 February 2017, to ACT Corrective Services, Level 1, 249 London Circuit, Canberra City, ACT for the purposes of arranging probation supervision.

10. It be declared that, under s 32(5) of the Road Transport (Driver Licensing) Act 1999 (ACT), Adam Amos’ automatic disqualification from holding or obtaining a licence in respect of the offence of driving whilst disqualified as a repeat offender on 19 October 2012 commenced on 17 October 2013 and ended on 16 October 2015, and for the offence of driving whilst disqualified as a repeat offender on 28 December 2012 commenced on 17 October 2013 and ended on 16 October 2015.

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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Citations

AGLC Citation

Amos v McCarron (No 2) [2017] ACTSC 46

Most Recent Citation

McCurley v Beath [2017] ACTSC 196

Cases citing this decision · 4 of 4 shown

R v Po'oi (No 5)
[2023] ACTSC 413

…Amos v McCarron (No 2) [2017] ACTSC 46 R v Blackburn (No 3 ) [2021] ACTSC 337 R v Ngerengere (No 3) [2016] ACTSC 399 R v Po’oi [2021] ACTSC 151 R v Po'oi (No 2) [2021] ACTSC 340 R v Po’oi (No 3) [2021] ACTSC 354 R v Po’oi (No 4) [2022] ACTSC 198 Saga v Reid and Collett [2010] ACTSC 59…
R v Subasic
[2022] ACTSC 380 Para 2

…As was said in Amos v McCarron (No 2) [2017] ACTSC 46 at [1]: Delay ordinarily dilutes or may even destroy justice, especially criminal justice, but sometimes delay can achieve the objective of the criminal law by protecting the community where an offender, who might otherwise prey upon society, may be reformed ov…
Amos v McCarron (No 3)
[2019] ACTSC 223 Para 1

…eal with a breach of a good behaviour order imposed by Refshauge J following a successful appeal against sentence in 2017: see Amos v McCarron (No 2) [2017] ACTSC 46. That appeal was against sentences imposed in 2013.…
McCurley v Beath
[2017] ACTSC 196 Para 1

…mprisonment which was imposed, the appellant may be able to lead what is referred to by some as a “pro-social” life: see Amos v McCarron (No 2) [2017] ACTSC 46 at [54], [97]. The prospects of him doing so would be impeded if he is burdened with a period of disqualification which extends over the best part of his r…

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Cases cited in this decision · 28 of 28 shown

R v Major
[2021] QDC 63

…BB [2005] NSWCCA 215 R v Curtis (No 2) [2016] ACTSC 34 R v F (1998) 8 Tas R 88 R v Harrison (1990) 48 A Crim R 197 R v Law [1996] 2 Qd R 63 R v Major (1998) 70 SASR 488; 100 A Crim R 66 R v MWH [2001] VSCA 196 R v M, WJ [2005] SASC 272; 92 SASR 371 R v PLV [2001] NSWCCA 282; 51 NSWLR 736 R v Thorn [2016] ACTSC 217 R…
Amos v McCarron
[2017] ACTSC 6 Para 1

…Mr Amos appealed against the four sentences of imprisonment and on, 19 January 2017, I upheld the appeal. See Amos v McCarron [2017] ACTSC 6. That required Mr Amos to be re-sentenced.…
Ridgeway v The Queen
[2016] NSWCCA 184

…Mill v The Queen (1988) 166 CLR 59 Radenkovic v The Queen (1990) 170 CLR 623 Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583 Ridgeway v The Queen [2016] NSWCCA 184 R v BB [2005] NSWCCA 215 R v Curtis (No 2) [2016] ACTSC 34 R v F (1998) 8 Tas R 88 R v Harrison (1990) 48 A Crim R 197 R v Law [1996] 2 Qd R 63 R v M…
WC v R
[2016] NSWCCA 173 Para 1

…han directed explicitly of the driving offences for which I must sentence him has no limiting effect on the relevance to the sentence: WC v The Queen [2016] NSWCCA 173 at [59]-[62]. That is, rehabilitation is directed principally at the offender rather than the offence. The emphasis is, of course, on progress rather…
R v Thorn
[2016] ACTSC 217

…(1998) 70 SASR 488; 100 A Crim R 66 R v MWH [2001] VSCA 196 R v M, WJ [2005] SASC 272; 92 SASR 371 R v PLV [2001] NSWCCA 282; 51 NSWLR 736 R v Thorn [2016] ACTSC 217 R v Todd [1982] 2 NSWLR 517 R v Whyte [2004] VSCA 5; 7 VR 397 Saga v Reid [2010] ACTSC 59 Scook v The Queen [2008] WASCA 114 Selles, Rollings, Direct…
R v Curtis (No 2)
[2016] ACTSC 34 Para 1

…In R v Curtis (No 2) [2016] ACTSC 34 at [18]-[19], I said:…
Burow v The Queen
[2015] ACTCA 61 Para 1

…ege that is a driver licence and which consequences flow from the legislation and not from any order of the Court as explained in Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 at 165; [31]-[32].…
Storay v Watkins
[2014] ACTSC 344 Para 1

…t would be desirable if the legislature were to address this problem. It is not dissimilar to the problem identified by Penfold J in Storay v Watkins [2014] ACTSC 344.…
Snaidero v Crampton
[2014] ACTSC 262 Para 1

…comes to the attention of police, though police have developed mechanisms, such as the RAPID System, which I described briefly in Snaidero v Crampton [2014] ACTSC 262 at [29], to detect more disqualified drivers without the need for such breaches.…
Guy v Anderson
[2013] ACTSC 5 Para 1

…Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, re-sentence the offender and that may involve imposing the same sentence, inc…
Stalio v The Queen
[2012] VSCA 120

…] WASCA 114 Selles, Rollings, Director of Public Prosecutions (ACT) v Bailey [2000] ACTSC 111 Snaidero v Crampton [2014] ACTSC 262 Stalio v The Queen [2012] VSCA 120 Storay v Watkins [2014] ACTSC 344 WC v The Queen [2016] NSWCCA 173…
Hugg v Driessen
[2012] ACTSC 46 Para 1

…tive process may attach the disqualification to my orders. I held such a declaration to be desirable and appropriate in cases such as Hugg v Driessen [2012] ACTSC 46; 261 FLR 324 at 333; [69].…
Leighton v R
[2010] NSWCCA 280

…2; 19 NTLR 1 Griffiths v The Queen (1977) 137 CLR 293 Guy v Anderson [2013] ACTSC 5 Hugg v Driessen [2012] ACTSC 46; 261 FLR 324 Leighton v The Queen [2010] NSWCCA 280 Mill v The Queen (1988) 166 CLR 59 Radenkovic v The Queen (1990) 170 CLR 623 Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583 Ridgeway v The Queen…
Saga v Reid
[2010] ACTSC 59 Para 1

…In Saga v Reid [2010] ACTSC 59 at [99]-[101], I adopted what had been said in other cases, namely, that the failure of courts to act where there has been a clear breach of the conditions of an order of conditional release, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…There is no doubt that courts should take seriously offences of driving whilst under disqualification. In Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 317; [88], I cited what King CJ said in Coombe v Douris (1987) 47 SASR 324 at 325:…
CTM v The Queen
[2008] HCA 25 Para 1

…a defence to the charge, namely that he had an honest and reasonable mistake as to facts which would exculpate him from the offence: CTM v The Queen [2008] HCA 25; 236 CLR 440 at 446-7; [7]. I have some hesitation in accepting this, given the facts of the offence and the response Mr Amos gave to police when que…
Green v The Queen
[2006] NTCCA 22

…7) 47 SASR 324 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 CTM v The Queen [2008] HCA 25; 236 CLR 440 Dick (1994) 25 A Crim R 303 Green v The Queen [2006] NTCCA 22; 19 NTLR 1 Griffiths v The Queen (1977) 137 CLR 293 Guy v Anderson [2013] ACTSC 5 Hugg v Driessen [2012] ACTSC 46; 261 FLR 324 Leighton v The Queen […
R v Whyte
[2006] NSWCCA 75

…[2005] SASC 272; 92 SASR 371 R v PLV [2001] NSWCCA 282; 51 NSWLR 736 R v Thorn [2016] ACTSC 217 R v Todd [1982] 2 NSWLR 517 R v Whyte [2004] VSCA 5; 7 VR 397 Saga v Reid [2010] ACTSC 59 Scook v The Queen [2008] WASCA 114 Selles, Rollings, Director of Public Prosecutions (ACT) v Bailey [2000] ACTSC 111 Snai…
R v M, WJ
[2005] SASC 272

…Tas R 88 R v Harrison (1990) 48 A Crim R 197 R v Law [1996] 2 Qd R 63 R v Major (1998) 70 SASR 488; 100 A Crim R 66 R v MWH [2001] VSCA 196 R v M, WJ [2005] SASC 272; 92 SASR 371 R v PLV [2001] NSWCCA 282; 51 NSWLR 736 R v Thorn [2016] ACTSC 217 R v Todd [1982] 2 NSWLR 517 R v Whyte [2004] VSCA 5; 7 VR 397 Saga v…
R v BB
[2005] NSWCCA 215

…66 CLR 59 Radenkovic v The Queen (1990) 170 CLR 623 Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583 Ridgeway v The Queen [2016] NSWCCA 184 R v BB [2005] NSWCCA 215 R v Curtis (No 2) [2016] ACTSC 34 R v F (1998) 8 Tas R 88 R v Harrison (1990) 48 A Crim R 197 R v Law [1996] 2 Qd R 63 R v Major (1998) 70 SASR 488;…
Regina v The Queen
[2004] NTCCA 9

…6; 261 FLR 324 Leighton v The Queen [2010] NSWCCA 280 Mill v The Queen (1988) 166 CLR 59 Radenkovic v The Queen (1990) 170 CLR 623 Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583 Ridgeway v The Queen [2016] NSWCCA 184 R v BB [2005] NSWCCA 215 R v Curtis (No 2) [2016] ACTSC 34 R v F (1998) 8 Tas R 88 R v Harri…
R v Whyte
[2004] VSCA 5

…A 196 R v M, WJ [2005] SASC 272; 92 SASR 371 R v PLV [2001] NSWCCA 282; 51 NSWLR 736 R v Thorn [2016] ACTSC 217 R v Todd [1982] 2 NSWLR 517 R v Whyte [2004] VSCA 5; 7 VR 397 Saga v Reid [2010] ACTSC 59 Scook v The Queen [2008] WASCA 114 Selles, Rollings, Director of Public Prosecutions (ACT) v Bailey [2000] ACTS…
R v MWH
[2001] VSCA 196

…] ACTSC 34 R v F (1998) 8 Tas R 88 R v Harrison (1990) 48 A Crim R 197 R v Law [1996] 2 Qd R 63 R v Major (1998) 70 SASR 488; 100 A Crim R 66 R v MWH [2001] VSCA 196 R v M, WJ [2005] SASC 272; 92 SASR 371 R v PLV [2001] NSWCCA 282; 51 NSWLR 736 R v Thorn [2016] ACTSC 217 R v Todd [1982] 2 NSWLR 517 R v Whyte [2004…
R v PLV
[2001] NSWCCA 282

…m R 197 R v Law [1996] 2 Qd R 63 R v Major (1998) 70 SASR 488; 100 A Crim R 66 R v MWH [2001] VSCA 196 R v M, WJ [2005] SASC 272; 92 SASR 371 R v PLV [2001] NSWCCA 282; 51 NSWLR 736 R v Thorn [2016] ACTSC 217 R v Todd [1982] 2 NSWLR 517 R v Whyte [2004] VSCA 5; 7 VR 397 Saga v Reid [2010] ACTSC 59 Scook v The Queen…
Radenkovic v The Queen
[1990] HCA 54

…ACTSC 5 Hugg v Driessen [2012] ACTSC 46; 261 FLR 324 Leighton v The Queen [2010] NSWCCA 280 Mill v The Queen (1988) 166 CLR 59 Radenkovic v The Queen (1990) 170 CLR 623 Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583 Ridgeway v The Queen [2016] NSWCCA 184 R v BB [2005] NSWCCA 215 R v Curtis (No 2) [2016] ACTSC 34…
Mill v The Queen
[1988] HCA 70 Para 1

…The issue of cross-border offending and delay as a result is dealt with in Mill v The Queen (1988) 166 CLR 59.…
Griffiths v The Queen
[1977] HCA 44 Para 1

…mposed, thus achieving the objective of sentencing as was realised at least as far back as 1977 when the High Court had to consider such a process in Griffiths v The Queen (1977) 137 CLR 293, and which Barwick CJ described at 299 as, in that case, a decision not in error by the sentencing judge. This was a view shared by Murph…
[2000] ACTSC 111
[2000] ACTSC 111 Para 1

…ch, however, does not seem to have been applied in this Territory. See, for example, Selles, Rollings, Director of Public Prosecutions (ACT) v Bailey [2000] ACTSC 111 at [22]. I see no reason why it should necessarily apply, though the offence is a serious one.…

Legislation cited in this decision · 6

Crimes (Sentencing) Act 2005 (ACT)
27, 33, 7 4 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
216, 216(1) 3 mentions (from Para 1)
Road Transport (Driver Licensing) Act 1999 (ACT)
32(1)(a), 32(5) 3 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
110 2 mentions (from Para 1)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
4C(a) 2 mentions (from Para 1)
Bail Act 1992 (ACT)
1 mention