Bancroft v Carpenter - [2018] ACTSC 304

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bancroft v Carpenter
Citation:	[2018] ACTSC 304
Hearing Date:	17 December 2015
DecisionDate:	7 November 2018
Before:	Penfold J
Decision:	1. The appeal will be allowed to the extent necessary to set aside the orders made in respect of CC15/4432. 2. In respect of CC15/4432, no conviction will be recorded, but a good behaviour order for 12 months will be made, subject to core conditions only. 3. In respect of CC15/4065, the parties will be heard about whether any further orders are required to address the impact of the stay that was effected by the filing of this appeal.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against severity of sentence – absence of suspension period for drug-driving offence committed with drink-driving offence delayed offender’s access to interlock program – effect of drug-driving offence on interlock program access overlooked by Magistrate – appeal allowed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 17, 18 Magistrates Court Act 1930 (ACT) s 216 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4B, 4C, 4F, 20, 35(2) Road Transport (General) Act 1999 (ACT) ss 61B, 68 Road Transport (Driver Licensing) Regulation 2000 (ACT) reg 73T
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472 Beattie v Potts [2015] ACTSC 350; 305 FLR 198 House v The King (1936) 55 CLR 499 R v Fairbairn (Unreported, ACT Supreme Court, 27 February 2012) Roncevic v Boxx [2015] ACTSC 53
Parties:	James Francis Bancroft (Appellant) Matthew James Carpenter (Respondent)
Representation:	Counsel Mr P Edmonds (Appellant) Ms R Khazma (Respondent)
Solicitors Paul Edmonds Solicitor (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 64 of 2015
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 8 July 2015 Case Title: R v Bancroft Court File Numbers: CC15/4065; CC15/4432

Introduction

James Bancroft was sentenced in the Magistrates Court for two offences, being in colloquial terms drink-driving and drug-driving. He has appealed against his sentence.

Background

Circumstances of offences

Not long after 10pm on a Saturday night in March 2015, Mr Bancroft was driving a car in a residential street in Kaleen. The car mounted the gutter and went onto the nature strip, and a few metres further on collided with a car parked on the nature strip. Mr Bancroft’s car continued on and collided with an ACTEW light pole, which collapsed. Mr Bancroft’s car rotated 90 degrees and stopped, blocking the street.

Mr Bancroft sustained injuries to his face. His airbag had deployed, and police noticed it was covered in blood.

Mr Bancroft was taken to hospital, where a compulsory blood sample was taken. A blood alcohol reading of 0.195 was returned, and there was also evidence of cannabis in the sample, although no quantity or level was specified in the ACT Government Analytical Laboratory (ACTGAL) certificate. It seemed to be accepted by the parties that the absence of any quantitative information did not indicate…

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 Bancroft v Carpenter

Details

AGLC: Bancroft v Carpenter [2018] ACTSC 304
Case: [2018] ACTSC 304
Decision Date: 7 November 2018

CaseChat Overview and Summary

Bancroft appealed against the severity of a sentence imposed on him for drug-driving and drink-driving offences. The court had convicted him and ordered him to pay fines and costs, and to be disqualified from driving for a period of 12 months. Bancroft argued that the court should have suspended the disqualification for a period of three months to allow him to access an interlock program, which would have enabled him to drive for work purposes. The court of appeal considered whether the primary judge should have suspended the disqualification period and whether the delay in accessing the interlock program had caused Bancroft substantial hardship.

The court of appeal considered whether the primary judge should have suspended the disqualification period for Bancroft’s drug-driving offence to allow him to access the interlock program. The court noted that the primary judge had failed to consider the effect of the drug-driving offence on Bancroft’s access to the interlock program. The court held that the primary judge should have considered whether the delay in accessing the interlock program caused Bancroft substantial hardship. The court held that the primary judge’s failure to consider the effect of the drug-driving offence on Bancroft’s access to the interlock program was a material error of law.

The court of appeal allowed the appeal and set aside the orders made in respect of Bancroft’s drug-driving offence. The court held that the primary judge should have considered whether the delay in accessing the interlock program caused Bancroft substantial hardship. The court held that the primary judge’s failure to consider the effect of the drug-driving offence on Bancroft’s access to the interlock program was a material error of law. The court ordered that no conviction be recorded in respect of Bancroft’s drug-driving offence, but that a good behaviour order for 12 months be made, subject to core conditions only. The court ordered that the parties be heard about whether any further orders were required to address the impact of the stay that was effected by the filing of this appeal.

Orders

Orders of the court

1. The appeal will be allowed to the extent necessary to set aside the orders made in respect of CC15/4432.

2. In respect of CC15/4432, no conviction will be recorded, but a good behaviour order for 12 months will be made, subject to core conditions only.

3. In respect of CC15/4065, the parties will be heard about whether any further orders are required to address the impact of the stay that was effected by the filing of this appeal.

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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