Beaver v Bolton - [2016] ACTSC 218

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Beaver v Bolton
Citation:	[2016] ACTSC 218
Hearing Date:	29 July 2016
DecisionDate:	29 July 2016
Before:	Burns J
Decision:	See [14]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – driving with prescribed concentration of alcohol in breath – failure to consider non-conviction order – no previous convictions – appellant’s character – early guilty plea – appeal upheld – appellant re-sentenced.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 13, 17 Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19(1)
Cases Cited:	MacPherson v Thorncraft [2014] ACTSC 277
Parties:	Janice Beaver (Appellant) Benjamin Bolton (Respondent)
Representation:	Counsel Mr T Sharman (Appellant) Ms V Conliffe (Respondent)
Solicitors Sharman Lynch Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 31 of 2016
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 29 March 2016 Case Title: Benjamin Bolton v Janise Beaver Court File Number: CC16/124

BURNS J:

This is an appeal from a decision of a magistrate given on 29 March 2016 in which he imposed a conviction for a drink driving offence, fined the appellant $400.00 and disqualified her from holding or obtaining a driver’s licence for a period of four months.

The appellant was charged in the Magistrates Court with an offence contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) alleging that as a first offender in the Australian Capital Territory on 7 November 2015, having been the driver of a motor vehicle on a road, she did have within the relevant period the prescribed concentration of alcohol in her breath, being level three. The appellant was charged by way of summons with that offence. That summons was returnable in the Magistrates Court on 29 March this year. On that day, the appellant appeared before the magistrate unrepresented. She immediately entered a plea of guilty to the charge.

The facts were read which indicated essentially that the appellant had been the driver of a motor vehicle on a road in Wanniassa at about 8.05 pm on 7 November 2015. She was stopped at a random breath testing location. She underwent an alcohol screening test, which was positive. She was taken into custody at which time she had a breath analysis that returned a result of 0.093 grams of alcohol per 210 litres of breath.

While dealing with the police, police observed that the appellant’s face was flushed, her speech was slurred and her eyes were watery. I interpolate at this point to note that the evidence given by the appellant before the magistrate would explain at least the flushing of her face and the apparent wateriness of her eyes, as she said that she had been very upset shortly before she drove the motor vehicle and indeed had been crying. She did not believe, according to her evidence before the magistrate, that her voice was slurred.

There does not appear to…

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 Beaver v Bolton

Details

AGLC: Beaver v Bolton [2016] ACTSC 218
Case: [2016] ACTSC 218
Decision Date: 29 July 2016

CaseChat Overview and Summary

The case of Beaver v Bolton involved an appeal against a conviction for driving with a prescribed concentration of alcohol in the breath. The appellant, Beaver, had pled guilty in the Magistrates Court and was convicted. The appeal was brought before the higher court, which was tasked with reviewing the decision and determining if any errors were made during the initial proceedings. The appeal centred on whether the Magistrates Court had properly exercised its discretion to consider a non-conviction order, and if it had adequately taken into account the appellant's character and the fact that this was his first offence when determining the sentence.

The court was required to decide if the Magistrates Court had erred in not considering a non-conviction order, given the appellant's early guilty plea and lack of prior convictions. The appeal also questioned whether the Magistrates Court had sufficiently considered the appellant's good character and the potential benefits of a non-conviction order, which could have included rehabilitation without the stigma of a criminal record. The court needed to assess if the sentence was appropriate in light of these factors and whether the Magistrates Court had followed the correct legal principles.

The higher court found that the Magistrates Court had failed to properly consider a non-conviction order, which is a viable alternative in cases involving first-time offenders with no prior convictions. The court determined that the Magistrates Court had not adequately weighed the appellant's good character and the fact that this was his first offence. Consequently, the appeal was upheld, and the case was remitted to the Magistrates Court for re-sentencing. The higher court emphasised the importance of considering non-conviction orders in appropriate cases, particularly for first-time offenders, to avoid unnecessary criminal records and to provide an opportunity for rehabilitation.

The final orders of the court were to remit the case back to the Magistrates Court for re-sentencing, with specific direction to consider a non-conviction order in light of the appellant's early guilty plea and lack of prior convictions. The court highlighted the importance of taking the appellant's good character into account and the potential benefits of a non-conviction order in this scenario.

Orders

Orders of the court

See [14]

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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