Ayres v Ford - [2016] ACTSC 204

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ayres v Ford
Citation:	[2016] ACTSC 204
Hearing Date:	20 July 2016
DecisionDate:	20 July 2016
Before:	Murrell CJ
Decision:	Appeal against sentence allowed. Sentenced to an 18-month good behaviour order and disqualified from driving for 12 months. See [32].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Punishment – sentencing – drug-driving – whether sentence manifestly excessive – appeal allowed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) s 10 Crimes (Sentencing) Act 2005 (ACT) s 10 Magistrates Court Act 1930 (ACT) s 208 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4F, 34 Road Transport (General) Act 1999 (ACT) s 61A
Cases Cited:	Irving v Head [2016] ACTSC 37
Parties:	Stephen Ross Ayres (Applicant) Brett Jason Eric Ford (Respondent)
Representation:	Counsel Mr P Edmonds (Applicant) Mr D Sahu Khan (Respondent)
Solicitors Paul Edmonds and Associates (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 53 of 2015
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Boss Date of Decision: 3 June 2015 Case Title: R v Stephen Ross Ayres Court File Number: CC 9941 of 2014

MURRELL CJ:

For an offence of drug-driving, the Magistrates Court sentenced the appellant as a repeat offender to one month's imprisonment, suspended for two years upon the appellant accepting a good behaviour order with supervision conditions. The maximum available penalty was three months' imprisonment and/or a fine of 25 penalty units for a repeat offender, or 10 penalty units and no imprisonment for a first offender.

Section 4F of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Road Transport (Alcohol and Drugs) Act) defines “repeat offender” to include someone who has been convicted of an offence of a similar nature. In 1989 and 1992, the appellant was convicted of driving with a prescribed concentration of alcohol in his blood.

The Magistrate made no disqualification order, intending that the default disqualification period of five years that was applicable to repeat offenders would apply. The default disqualification period applicable to first offenders was three years.

The appellant appealed on the ground that the sentence was manifestly excessive, both in relation to the sentence of one month’s imprisonment and in relation to the disqualification period of five years.

He now concedes that an appeal against the disqualification period cannot be pursued because, at the relevant time, the legislation only allowed an appeal from "an order of the court" and, in this case, the Magistrate did not “order” the disqualification; her Honour merely allowed the default period by statutory operation. The law has since been changed. Now such an appeal is enabled by the combined effect of s 34(3) of the Road Transport (Alcohol and Drugs) Act, s 61A of the Road Transport (General) Act 1999 (ACT) and s 208(1)(g) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). However, the disqualification period may be revisited if the appellant succeeds on the other…

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.

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Details

AGLC: Ayres v Ford [2016] ACTSC 204
Case: [2016] ACTSC 204
Decision Date: 20 July 2016

CaseChat Overview and Summary

The case of Ayres v Ford involves the appellant, Mr. Ayres, who was convicted of drug-driving, and the respondent, the Director of Public Prosecutions. The dispute at hand concerns the severity of the sentence imposed on Mr. Ayres, which he deemed manifestly excessive. This matter was brought before the court of appeal, which was tasked with reviewing the sentencing decision to determine if it was indeed too harsh.

The primary legal issue that the court had to address was whether the sentence handed down by the lower court was manifestly excessive. The court had to consider various factors, including the principles of sentencing and the objective of deterrence, in determining whether the sentence was appropriate. The appellant argued that the sentence was manifestly excessive, while the respondent contended that the sentence was proportionate and justifiable.

The court, in reviewing the sentence, took into account the nature and circumstances of the offence, as well as the principles of sentencing. The court concluded that the sentence was indeed manifestly excessive, as it did not adequately reflect the principles of sentencing and the objective of deterrence. As a result, the court allowed the appeal against the sentence. The appellant was sentenced to an 18-month good behaviour order and disqualified from driving for 12 months, which the court found to be a more appropriate and proportionate sentence for the offence committed.

Orders

Orders of the court

Appeal against sentence allowed. Sentenced to an 18-month good behaviour order and disqualified from driving for 12 months. See [32].

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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