Barac v Thexton

Case [2008] ACTSC 137

MICHELLE BARAC v TRISTAN THEXTON
[2008] ACTSC 137 (24 November 2008)

APPEAL AND NEW TRIAL – criminal law – appeal from decision of the Magistrates Court of the ACT – grounds of appeal – whether jurisdiction to appeal – Magistrates Court Act 1930 (ACT) Div 3.10.2.
CRIMINAL LAW – appeal from decision of the Magistrates Court of the ACT – severity of sentence – disqualification from holding a licence.
APPEAL AND NEW TRIAL – appeal from decision of the Magistrates Court of the ACT – further evidence – Court Procedures Rules 2006 (ACT) r 5193 – need for compliance.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19, 26, 33
Magistrates Court Act 1930 (ACT), s 207, Div 3.10.2

Legislation Act 2001 (ACT), s 133,

Crimes (Sentencing) Act 2005 (ACT), ss 16(2), 18, 29, Pts 3.3, 3.6
Road Transport (General) Act 1999 (ACT), s 67(2)

Court Procedures Rules 2006, r 5193

Evans v Shiels (2004) 185 FLR 1
Kelly v Apps (2000) 98 FCR 101
CDJ v VAJ (1998) 197 CLR 172
Browne v The Queen [2006] ACTCA 15
Green v Webb [2006] WASC 71
Noth v McDonald (1988) 35 A Crim R 303
Fitzgerald v Police (SA) (2000) 31 MVR 97
Learwood v Drinkwater (1986) 43 SASR 547
Porter v Prestwood (1983) 33 SASR 75
Allen v Bates (1979) 20 SASR 575
Watling v Watson; Ex parte Watson [1966] QWN 41
Satterthwaite v Prestwood (1977) 17 SASR 468
R v Leaf-Milham (1987) 47 SASR 499
Boeyen (1990) 50 A Crim R 482
George (VicCCA, 21 September 1990, unreported)
Taylor v Samuels (1977) 16 SASR 266
Burton (1990) 45 A Crim R 314
R v Calder;  Ex parte Attorney-General [1987] 1 Qd R 348
Picken v O’Sullivan [1952] SASR 184
Porricello v Samuels (1976) 14 SASR 83
Marr v Rowbottom (1989) 39 A Crim R 113
Shirley (1969) 53 Cr App R 543
Manning v Bennett [1971] Tas SR 15
R v Bazley (VSCA, Phillips CJ, Batt JA and Vincent AJA, 21 August 1997, unreported)
R v North [1971] RTR 366
Brooks v Baldock (1974) 9 SASR 591
R v Hicks (1987) 45 SASR 270
McGregor v Maguire [2008] ACTSC 7

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 73 of 2008

Judge:             Refshauge J
Supreme Court of the ACT

Date:              24 November 2008

IN THE SUPREME COURT OF THE     )
  )          No. SCA 73 of 2008
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:MICHELLE BARAC

Appellant

AND:TRISTAN THEXTON

Respondent

ORDER

Judge:  Refshauge J
Date:  24 November 2008
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be upheld.

  2. The conviction is confirmed.

  3. The sentences be set aside.

  4. A fine of $800 be imposed and to be paid to the Magistrates Court within 3 months of today.

  5. The Appellant be disqualified from holding or obtaining a licence to drive a motor vehicle for 6 months.

  1. Ms Michelle Barac, the appellant, was convicted under s 19 of the Road Transport (Alcohol and Drugs)…

Continue reading Barac v Thexton

Sign in free to access the full text

Details
AGLC
Barac v Thexton [2008] ACTSC 137
Case
[2008] ACTSC 137
Decision Date

CaseChat Overview and Summary

Barac appealed against her conviction and sentence imposed by the Magistrates Court of the ACT. The appeal centred on the severity of her sentence and the disqualification period from holding a licence. The appellant argued that the sentence imposed was too severe given her personal circumstances, including the impact on her family and employment. She also sought to adduce further evidence, which she had not properly submitted in accordance with the relevant court rules.

The court was required to determine whether the appeal had jurisdiction and if the appellant had complied with the procedural requirements to adduce further evidence. The court also needed to assess the severity of the sentence in light of the appellant's personal circumstances and whether the sentence was proportionate to the offence. Additionally, the court had to consider if the disqualification period from holding a licence was appropriate given the appellant's circumstances.

The court found that while the appellant had not strictly complied with the procedural requirements to adduce further evidence, it exercised its discretion to allow the evidence to be presented. The court then considered the evidence presented and concluded that the personal hardship imposed on the appellant warranted a reduction in the disqualification period from holding a licence. The court also determined that the total sentence, including the fine, was too lenient given the nature of the offence and the appellant's status as a repeat offender. Consequently, the court upheld the appeal, confirmed the conviction, set aside the original sentences, and imposed a new fine of $800 along with a reduced disqualification period of six months.

ORDERS:

1. The appeal be upheld.
2. The conviction is confirmed.
3. The sentences be set aside.
4. A fine of $800 be imposed and to be paid to the Magistrates Court within 3 months of today.
5. The Appellant be disqualified from holding or obtaining a licence to drive a motor vehicle for 6 months.

Orders

Orders of the court

1. The appeal be upheld.

2. The conviction is confirmed.

3. The sentences be set aside.

4. A fine of $800 be imposed and to be paid to the Magistrates Court within 3 months of today.

5. The Appellant be disqualified from holding or obtaining a licence to drive a motor vehicle for 6 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Evidence on the Appeal. Ms Barac sought to adduce further evidence on the appeal. She had not, however, complied with r 5193 of the Court Procedures Rules 2006 (ACT) which requires of an application to adduce further evidence under s 214 of the Magistrates Court Act 1930 (ACT) that:(2) The application must be supported by an affidavit stating -(a) the grounds of the application; and(b)any evidence necessary to establish the grounds of the application; and(c)the evidence that the applicant wants the Supreme Court to receive.(3)Not later than 21 days before the day set for the hearing of the appeal, the applicant must file the affidavit in the Supreme Court and serve a stamped copy on the other party to the appeal. The reasons for such a provision are clear. It gives the other party a proper opportunity to consider its attitude to the adducing of that evidence and prepare for any argument if it seeks to oppose it, knowing what the evidence will be. It also permits the other party an opportunity to make any necessary inquiries that may be required in respect of that evidence. Finally, it allows the other party the opportunity to have prepared its submissions knowing the full extent of the evidence that will be before the appeal court. I note that, in this case, the notice of appeal did refer to a foreshadowed application to adduce further evidence. It does not appear that the respondent sought to remind the appellant of the requirements of r 5193. Ms Barac did not, however, condescend to In the event, after Mr Edmonds explained the scope of the evidence proposed to be adduced and I agreed to give Ms S Jowitt, who appeared for the respondent, an appropriate adjournment after hearing the evidence so that she could deal with the evidence adduced, Ms Jowitt could point to no specific prejudice and I gave leave to adduce the evidence at least by dispensing with the strict requirements of this rule as I had power to do under r 6 of the Court Procedures Rules 2006. Ms Barac gave evidence that she and her de facto partner had a child who was 20 months old. Her partner owned a business and she was an integral part of it. While much of her work was administration, she had to deliver plans in person to local councils, do the banking and run errands, including occasionally delivering equipment to sites. She estimated that she was out of the office about three days per week. As she had lost her licence, her partner had to do these jobs. It meant that he had to do his other work after hours which meant he rarely arrived home until well after their child had gone to bed. It was significantly affecting their relationship and his relationship with his child. Ms Barac also noted that the business was not able to afford additional staff or to pay the present staff additionally for this work. She also found that it made it extremely difficult to go shopping, continue with swimming lessons for her child or engage in other planned activities. She was concerned that buses had no safety belts nor specific seats for toddlers and so her child was at some risk. Her concern for safety was laudable, but seemed a little simplistic and blinkered considering the risk she had put herself and other road users in by driving with such a relatively high blood alcohol reading. She had tried using taxis but found them unreliable, especially as she needed a taxi with a suitable child seat.

Decision

Reasons for decision

Conclusion on Appeal. Having regard to the evidence I have heard, it seems to me that the personal hardship imposed on the appellant, through her family and work situation, is such that a greater reduction in the disqualification period is proper. The Learned Magistrate reduced the period by one third when there was only evidence of some limited effect on her employment. Given the level of hardship, some greater reduction is appropriate. I note that the maximum fine is the same for a first offender and a repeat offender. Thus, fines for repeat offenders should be at the upper end of the range. I also note that by virtue of s 216 of the Magistrates Court Act 1930 (ACT), the institution of the appeal stayed the licence disqualification. Ms Barac, however, gave evidence before me that she did not appreciate this and has not driven since her licence was disqualified on 10 June 2008. Thus the effect of this is that between 4 September 2008 and today she has not driven and has treated her position as though she were a disqualified driver. Taking this into account, and given Ms Barac’s circumstances, I consider that I can reduce the licence disqualification to the minimum of six months. That will mean that she has from today three months and six days of further disqualification, that is to 2 March 2009, though she will have, by then, not been driving for a few days over eight months. Given the reading, which was in the middle of the range for Level 3, the fact that she was a repeat offender and the circumstances of the driving, where there was no actual manner of driving which drew her to the attention of police, the distance she had travelled, including that her journey commenced in Civic where there would have been many cars and pedestrians, I consider that the total sentence will then be too lenient and so propose to increase the fine. Accordingly, I: (a) uphold the appeal; (b) confirm the conviction; (c) set aside the sentences and instead impose a fine of $800 to be paid within 3 months of today; and (d)order that the period of disqualification from holding or obtaining a licence be reduced to the minimum period of 6 months.I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.Associate:Date: 11 December 2008

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.