Andrew Dennis v Andrew McKellar
[2012] ACTSC 202
•18 December 2012
ANDREW DENNIS v ANDREW MCKELLAR
[2012] ACTSC 202 (18 December 2012)
APPEAL – appeal from Magistrates Court – appeal against sentence – driver’s licence disqualification – manifest excess – whether undue weight given to prior offending – period warranted as deterrent – little leniency on the basis of previous conviction – no error on the part of the Magistrate – appeal dismissed.
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 64 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 18 December 2012
IN THE SUPREME COURT OF THE )
) No. SCA 64 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ANDREW DENNIS
Appellant
AND: ANDREW MCKELLAR
Respondent
ORDER
Judge: Burns J
Date: 18 December 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The orders of the Magistrate are confirmed with the disqualification period beginning today but reduced by a period of 7 days to reflect the time the appellant was without his licence.
In these proceedings the appellant appeals from a disqualification of driver’s licence imposed in the Magistrates Court. On 1 August this year the appellant was sentenced with respect to one count of driving a motor vehicle, as a repeat offender, with a prescribed concentration of alcohol in his blood. On this occasion being a level three reading of 0.146. On 1 August 2012 the appellant’s matter was first before the Magistrates Court and on that date the appellant pleaded guilty to the offence and was sentenced.
The automatic disqualification was one of three years disqualification from holding or obtaining a license. It is quite clear that, based upon the submissions that were made to the Magistrate, her Honour reduced the automatic disqualification by 50 percent and imposed a disqualification of 18 months.
A submission had been made to the Magistrate that the minimum disqualification period of six months should be applied. Clearly the Magistrate considered that questions of deterrence required a more lengthy disqualification period to be imposed. Material was put before the Magistrate, suggesting that there may be difficulties with the appellant’s employment if he were disqualified from holding a license for a lengthy period. It is quite clear from the Magistrate’s sentencing comments that her Honour took into account that matter when determining the appropriate disqualification period.
Her Honour took into account, as was appropriate, the fact that the appellant had a prior conviction in August 2008 for a level three drink driving offence, at which time he had been disqualified from holding a license for a period of eight months. The Magistrate was entitled to consider that a disqualification of the length which her Honour imposed was warranted, not only in terms of deterring others who may be minded to commit this type of offence, but also in order to deter the appellant himself from committing this type of offence.
Her Honour quite correctly pointed out that the appellant was entitled to little by way of leniency based upon his previous conviction. In my opinion no error has been demonstrated in the sentence which was imposed by the Magistrate and I could not, in any way, consider the sentence to have been manifestly excessive, and in particular the disqualification period. As such the appeal will be dismissed and the orders made by the Magistrate will be confirmed.
The disqualification order made by the Magistrate will commence today, but I will note that that period should be reduced by a period of seven days in order to reflect the time between the lodging of the appeal and the appellant’s licence being returned to him.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate: James Middleton
Date: 18 January 2013
Counsel for the appellant: Mr J Sabharwal
Solicitor for the appellant: Mr T Sharman
Counsel for the respondent: Mr Lundy
Solicitor for the respondent: Office of ACT Director of Public Prosecutions
Date of hearing: 18 December 2012
Date of judgment: 18 December 2012
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