Barry Atherden v Gareth Hipwell - [2013] ACTSC 86

BARRY ATHERDEN v GARETH HIPWELL
[2013] ACTSC 86 (9 May 2013)

APPEAL – GENERAL PRINCIPLES – appeal against sentence –Level 1 drink-driving offence – impact of conviction and loss of licence on offender’s employment – whether Magistrate made an error of fact – Magistrate rejected claim that offender would lose his job if convicted – whether Magistrate entitled to reject evidence of little weight if witness not cross-examined – no error of fact by Magistrate – appeal dismissed.

Crimes (Sentencing) Act 2005 (ACT), s 17

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 26, 33

Browne v Dunn (1893) 6 R 67
Giucci v Serbatoio [2005] ACTSC 132
Levinge v Director of Custodial Services, Department of Corrective Services and Ors (1987) 9 NSWLR 546
Mwauluka v Turkich [2013] ACTSC 1
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
R v CJP, R v CAD; R v MES [2003] NSWCCA 187

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 70 of 2011

Judge: Penfold J
Supreme Court of the ACT

Date: 9 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 70 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:
BARRY ATHERDEN Appellant
AND:
GARETH HIPWELL Respondent

ORDER

Judge:  Penfold J
Date:  9 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

(a)The appeal is dismissed.
(b)The parties be heard about any further orders required.

Introduction

On 27 July 2011 Barry Atherden (also known as Barrie Atherden) was found guilty of an offence committed on 29 April 2011 that, as a special driver and repeat offender, he drove with the prescribed concentration of alcohol in his blood. Mr Atherden was convicted and fined $500, the maximum fine available being $1,100, and disqualified from driving for a period of three months, being the minimum disqualification period available on conviction for the offence concerned (Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 26 and 33).

Mr Atherden appealed the Magistrate’s decision to record a conviction, filing notice of his intention to appeal to the Supreme Court on the day he was convicted.

The appeal

The basis of the appeal was that the sentencing Magistrate had made an error of fact in rejecting the submissions made by defence counsel seeking a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). The error of fact related to the likely impact of a licence disqualification on Mr Atherden’s employment.

The facts

Mr Atherden was charged with this offence after being stopped by police at about 5:10 pm on a Friday in Drakeford Drive, Isabella Plains. He was driving a vehicle described by the prosecutor only as “a white coloured Scania bearing ACT registration”, but which, it emerged from his counsel’s submissions, was a truck used by the appellant to deliver bricks. Mr Atherden’s licence authorising him to drive the truck was described as an “HC” driver licence, which subjected…

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 Barry Atherden v Gareth Hipwell

Details

AGLC: Barry Atherden v Gareth Hipwell [2013] ACTSC 86
Case: [2013] ACTSC 86
Decision Date: 9 May 2013

CaseChat Overview and Summary

Barry Atherden, also known as Barrie Atherden, was found guilty of driving with the prescribed concentration of alcohol in his blood on 27 July 2011. The offence occurred on 29 April 2011. As a special driver and repeat offender, Atherden was fined $500, the maximum fine available, and disqualified from driving for three months, the minimum disqualification period. Atherden appealed the decision, arguing that the Magistrate erred in not considering the impact of the conviction on his employment. The appeal was heard in the Supreme Court.

The legal issues before the Supreme Court were whether the Magistrate made an error of fact by not accepting that Atherden would lose his job if convicted, and whether the Magistrate was entitled to reject evidence of little weight due to the absence of cross-examination. The Court considered the credibility and weight of the evidence presented regarding Atherden's employment status and the Magistrate's assessment of the evidence.

The Court found that the Magistrate did not make an error of fact in rejecting Atherden’s claim that he would lose his job. The evidence presented was of little weight, and the Magistrate was entitled to discount it in the absence of cross-examination. The Court held that the Magistrate’s decision to impose the minimum penalty was appropriate and within the discretion afforded to Magistrates in such cases. Consequently, the appeal was dismissed.

The Court's final orders were to dismiss the appeal and confirm the conviction, fine, and disqualification from driving as originally imposed by the Magistrate.

Orders

Orders of the court

1. On 27 July 2011 Barry Atherden (also known as Barrie Atherden) was found guilty of an offence committed on 29 April 2011 that, as a special driver and repeat offender, he drove with the prescribed concentration of alcohol in his blood. Mr Atherden was convicted and fined $500, the maximum fine available being $1,100, and disqualified from driving for a period of three months, being the minimum disqualification period available on conviction for the offence concerned (Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 26 and 33).

2. Mr Atherden appealed the Magistrate’s decision to record a conviction, filing notice of his intention to appeal to the Supreme Court on the day he was convicted.

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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