Atmore v Milner

Case [2016] ACTSC 260


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Atmore v Milner

Citation:

[2016] ACTSC 260

Hearing Date:

28 July 2016

DecisionDate:

12 September 2016

Before:

Refshauge ACJ

Decision:

1.   The appeal be upheld.

2.   The conviction for driving as a repeat offender with Level 4 prescribed concentration of alcohol be confirmed.

3.   The sentences, including the disqualification from holding or obtaining a driver licence, be set aside.

4.   The parties be heard as to the sentence to be imposed.

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against conviction – appeal against sentence – licence disqualification – allowance for guilty plea – adequate reasons not given for sentence

CRIMINAL LAW AND PROCEDURE – SENTENCING – Manifestly excessive sentence – failure to take into consideration impact of licence suspension – considerations where sentence to be imposed – interference with employment – financial hardship on employer – protection of community

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), s 12

Crimes (Sentence Administration) Act 2005 (ACT)
Magistrates Court Act 1930 (ACT), ss 214, 214(3)(b), 216
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4C, 4E, 8, 19(1), 26, 33, 35
Road Transport (General) Act 1999 (ACT), s 61B

Road Transport (Driver Licensing) Regulation 2000 (ACT), s 52, 73T, 73U, 73W, 73X, 73ZL, Pt 3A

Cases Cited:

Allred v The Queen [2015] ACTCA 21

Barac v Thexton [2008] ACTSC 137
Bullock v Bower [2015] ACTSC 185
Burow v Hoyer (2015) 292 FLR 325
Cajina v Narsey [2016] ACTSC 10
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Crimmins v Pearson [2016] ACTSC 195
Dinsdale v The Queen (2000) 202 CLR 321
Grooms v Toohey (2012) 7 ACTLR 1
Hammond v Road Traffic Authority [2006] ACTSC 125
Hugg v Driessen (2012) 261 FLR 324
Irving v Head (2016) 75 MVR 13
Oliver (1982) 7 A Crim R 174
Piper v Hall [2013] ACTSC 207
Rich v Australian Securities and Investment Commission (2004) 220 CLR 129
R v McGrail [2016] ACTSC 141
R v Pairvenan (1985) 158 CLR 489
R v TW (2011) 6 ACTLR 18
R v Van Hoang Pham [2005] NSWCCA 94
Scott v Wynants (2009) 4 ACTLR 13
Shires v Edwards [2011] ACTSC 132
Sladic v Proud [2013] ACTSC 232
Smith v O’Dell [2016] ACTSC 176
Stoeher v Meyer [2016] ACTSC 144
Valentini (1980) 2 A Crim R 170

Texts Cited:

Australian Law Reform Commission, Alcohol, Drugs and Driving (ALRC, Sydney, 1976) Report No 4

Parties:

Andrew Atmore (Appellant)

Saul Milner (Respondent)

Representation:

Counsel

Mr P Edmonds (Appellant)

Ms R Khazma (Respondent)

Solicitors

Canberra Criminal Lawyers (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number(s):

SCA 10 of 2016

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Special Magistrate Doogan

Date of Decision:         27 January 2016

Case Title:  The Queen [sic] v Atmore

Court File Number(s):   CC 11347 of 2015

REFSHAUGE J:

  1. On 25 November 2015, at about 10.25pm, the appellant, Andrew Atmore, was driving along…

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Atmore v Milner [2016] ACTSC 260
Case
[2016] ACTSC 260
Decision Date

CaseChat Overview and Summary

In the case of Atmore v Milner, the appellant, Atmore, challenged both his conviction and sentence imposed by the Magistrates Court. Atmore was convicted of driving as a repeat offender with a high level of alcohol in his system. He contested the conviction on grounds of insufficiency of evidence and challenged the severity of the sentence, which included a disqualification from holding or obtaining a driver's licence. The appeal centred on the sufficiency of the reasons provided for the sentence, particularly the impact of the licence disqualification on his employment and financial hardship for his employer, as well as the community protection considerations.

The court was required to determine whether the sentence imposed by the Magistrates Court was manifestly excessive and whether the reasons provided were adequate. It also needed to consider whether the impact of the licence disqualification on the appellant's employment and the financial hardship it caused to his employer were appropriately balanced against the need for community protection. Additionally, the court had to assess whether the appeal was within its jurisdiction and whether the appeal process was properly followed.

The court found that the appeal was within its jurisdiction and that the reasons given for the sentence did not adequately address the impact of the licence disqualification on the appellant's employment and the financial hardship it caused his employer. The court held that the sentence was manifestly excessive and did not appropriately balance the various considerations. The conviction was confirmed, but the sentences, including the disqualification from holding or obtaining a driver's licence, were set aside. The matter was remitted to the Magistrates Court for the imposition of a new sentence.

The court ordered that the appeal be upheld, the conviction for driving as a repeat offender with a high level of alcohol be confirmed, and the sentences, including the disqualification from holding or obtaining a driver's licence, be set aside. The parties were directed to be heard as to the sentence to be imposed.

Orders

Orders of the court

1. The appeal be upheld.

2. The conviction for driving as a repeat offender with Level 4 prescribed concentration of alcohol be confirmed.

3. The sentences, including the disqualification from holding or obtaining a driver licence, be set aside.

4. The parties be heard as to the sentence to be imposed.

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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