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Atmore v Milner

Atmore v Milner

Case [2016] ACTSC 260 12 September 2016

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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:

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

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 Atmore v Milner

Details

AGLC: Atmore v Milner [2016] ACTSC 260
Case: [2016] ACTSC 260
Decision Date: 12 September 2016

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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Citations

AGLC Citation

Atmore v Milner [2016] ACTSC 260

Most Recent Citation

IT v Knight [2020] ACTSC 101

Cases citing this decision · 1 of 1 shown

IT v Knight
[2020] ACTSC 101

…ssioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Acuthan v Coates (1986) 6 NSWLR 472 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Atmore v Milner [2016] ACTSC 260 Balthazaar v The Queen [2012] ACTCA 26 Barron v Laverty [2019] ACTSC 198 Betts v The Queen [2016] HCA 25; 258 CLR 420 Campbell v Fortey (1987) 85 FLR…

View all 1 citing cases →

Cases cited in this decision · 28 of 28 shown

Smith v O'Dell
[2016] ACTSC 176 Para 1

…and rightly pointed out that this was not an excuse, that is in the usual legal sense of a complete answer to the charges. See Smith v O’Dell [2016] ACTSC 176 at [78]-[80].…
R v Holder
[2019] SASCFC 73

…nally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen , quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also…
Crimmins v Pearson
[2016] ACTSC 195 Para 1

…As I explained in Crimmins v Pearson [2016] ACTSC 195 at [59], offences such as those created by s 19(1) of the Alcohol and Drugs Act are designed to render the streets of our community safer by reducing on them the number of persons driving while impaired by alcohol consumption.…
R v O'Rafferty
[2016] ACTSC 141 Para 1

…s discussed appropriate treatment options and may proceed to attend the SMART Recovery Program, a drug and alcohol program I described in R v McGrail [2016] ACTSC 141 at [78]-[80].…
Stoehr v Meyer
[2016] ACTSC 144 Para 1

…The disqualification from holding or obtaining a driver licence in sentencing has been recently considered by Murrell CJ in Stoeher v Meyer [2016] ACTSC 144, where, at [36], her Honour agreed that the approach I had adopted in Burow v Hoyer was correct and should be allowed.…
Irving v Head
[2016] ACTSC 37 Para 1

…ualification ends so that there can be no confusion in the records of the Road Traffic Authority. See Hugg v Driessen (2012) 261 FLR 324 at 333 [69]; Irving v Head (2016) 75 MVR 13 at 25 [109]. Accordingly, I will make an appropriate declaration as to when the period of disqualification will end, subject to any submiss…
Cajina v Narsey
[2016] ACTSC 10 Para 1

…that not much is required to show that in sentencing the plea has been taken into account, and, as Murrell CJ pointed out recently in Cajina v Narsey [2016] ACTSC 10, there is no requirement for the sentencer to explain how it has been taken into account or what, if any, discount is applicable. See also Sladic v P…
Bullock v Bower
[2015] ACTSC 185 Para 1

…be a recognition of the inevitable conviction that the evidence for such an offence will prove. That is why, as noted by Penfold J in Bullock v Bower [2015] ACTSC 185, the plea will rarely have significant direct effect.…
Allred v The Queen
[2015] ACTCA 21 Para 1

…As approved recently by the Court of Appeal in Allred v The Queen [2015] ACTCA 21 at [29], the approach of the Court to this ground has been set out in R v TW (2011) 6 ACTLR 18 at 27-8 [59]-[61], as follows:…
Burow v Hoyer
[2015] ACTSC 21 Para 1

…There is a default period for disqualification, which may be reduced, but not below a statutory minimum. I explained this in Burow v Hoyer (2015) 292 FLR 325.…
Sladic v Proud
[2013] ACTSC 232 Para 1

…re is no requirement for the sentencer to explain how it has been taken into account or what, if any, discount is applicable. See also Sladic v Proud [2013] ACTSC 232 at [60]. It must be taken into account and that is only shown by a specific reference to it. In this case, there was not even an indirect reference,…
Piper v Hall
[2013] ACTSC 207 Para 1

…e also, but on different levels of prescribed concentrations of alcohol and under a different regime, though not, therefore, irrelevant, Piper v Hall [2013] ACTSC 207.…
Hugg v Driessen
[2012] ACTSC 46

…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 Com…
Grooms v Toohey
[2012] ACTSC 28 Para 1

…I have set out the principles under which these provisions operate in Grooms v Toohey (2012) 7 ACTLR 1 at 8-10 [35]-[37].…
Shires v Edwards
[2011] ACTSC 132 Para 1

…hat a sentence may have to interfere with Mr Atmore’s employment. Her Honour was right to have regard to that. See, for example, Shires v Edwards [2011] ACTSC 132 at [82].…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.…
R v Thorn
[2010] ACTCA 10 Para 33

…dentifying the relevant matters which go to show how it is said the court can — and should — draw the relevant conclusion. See also R v Thorn [2010] ACTCA 10 (at [33]).…
Hawkins v Hawkins
[2009] ACTSC 148 Para 32

…mary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]-[35]): 32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]): 46. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy t…
Scott v Wynants
[2009] ACTSC 62 Para 1

…number of appeals from the Magistrates Court where disqualification is in issue and from these some information can be gleaned. I note, too, that in Scott v Wynants (2009) 4 ACTLR 13 at 16 [14], Higgins CJ pointed out that a statistical analysis presented to him showed that, in the case of sentences for offenders with L…
The Queen v Morse
[2009] NZCA 51

…entence which merely forms part of that range. 34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for th…
Barac v Thexton
[2008] ACTSC 137 Para 1

…ant circumstances. Additional to this is the requirement for disqualification of the offender’s driver licence. As I explained in Barac v Thexton [2008] ACTSC 137 at [44]-[47], a driver licence is a privilege and not a right. Disqualification from obtaining or holding such a licence is part of the sentence, so that…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…st be taken into account and that is only shown by a specific reference to it. In this case, there was not even an indirect reference, as accepted in Cotter v Corvisy (2008) 1 ACTLR 299 at 310 [54] would have been sufficient to show it had been taken into account.…
Rama v The Queen
[2006] ACTCA 25

…an be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this…
Hammond v Road Transport Authority
[2006] ACTSC 125 Para 1

…His Honour also referred in that decision at 16 [12], to the decision of Hammond v Road Traffic Authority [2006] ACTSC 125, where a repeat offender with a prescribed concentration of alcohol of 0.235 grams of alcohol per 100 mls of blood was sentenced to a Good Behaviour Order with community service and a two year…
R v Pham
[2005] NSWCCA 94 Para 1

…tion of convicted offenders which are not to be taken into account on sentence. See R v Pairvenan (1985) 158 CLR 489 at 494-5 [6]; R v Van Hoang Pham [2005] NSWCCA 94 at [13]-[14]. I did not, however, hear full argument on the issue and so would not wish to make a final finding.…
Rich v Australian Securities and Investments Commission
[2004] HCA 42 Para 1

…eem to me to be very different from what I said in Barac v Thexton . In any event, this dual aspect is consistent with the High Court’s decision in Rich v Australian Securities and Investment Commission (2004) 220 CLR 129.…
Dinsdale v The Queen
[2000] HCA 54 Para 1

…anifestly excessive. That is the finding of a conclusion from the total circumstances, having regard to sentencing practice. See Dinsdale v The Queen (2000) 202 CLR 321 at 325 [6].…
R v Paivinen
[1985] HCA 39 Para 1

…issions on a sentence of imprisonment or the deportation of convicted offenders which are not to be taken into account on sentence. See R v Pairvenan (1985) 158 CLR 489 at 494-5 [6]; R v Van Hoang Pham [2005] NSWCCA 94 at [13]-[14]. I did not, however, hear full argument on the issue and so would not wish to make a f…

Legislation cited in this decision · 5

Road Transport (Alcohol and Drugs) Act 1977 (ACT)
19(1), 26, 33, 35, 4C, 4E, 8 8 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
214, 214(3)(b), 216 4 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
12 2 mentions (from Para 1)
Road Transport (General) Act 1999 (ACT)
61B 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention