Ben William McGregor v Peter Matthew Maguire - [2008] ACTSC 7

BEN WILLIAM MCGREGOR v PETER MATTHEW MAGUIRE
[2008] ACTSC 7 (5 February 2008)

TRAFFIC LAW – offences – particular offences – alcohol and drug related offences – level 3 PCA, repeat offender – disqualification period
MAGISTRATES – appeal from and control over magistrates – error of law by magistrate
CRIMINAL LAW - driving offences

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4D, 26, 32, 33, 34, 67
Magistrates Court Act 1930 (ACT), s 216
Road Transport (Driver Licensing) Regulation 2000, s 45-51
Road Transport (Safety & Traffic Management) Act 1999 (ACT)
Crimes (Sentencing Act )2005 (ACT), s 37

Markarian v R (2005) 228 CLR 357

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 50 of 2007

Judge: Higgins CJ
Supreme Court of the ACT

Date: 5 February 2008

IN THE SUPREME COURT OF THE )
) No. SCA 50 of 2007
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:BEN WILLIAM MCGREGOR
Appellant

AND:PETER MATTHEW MAGUIRE
Respondent

ORDER

Judge:  Higgins CJ
Date:  5 February 2008
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld;

The period of disqualification imposed by the magistrate be reduced to 12 months;

The sentence save as to the period of disqualification be confirmed;

Parties be heard as to consequential orders.

The appellant had pleaded guilty before Magistrate Burns on 19 June 2007 to a charge that, on 5 April 2007, being a special driver and a repeat offender, he drove a motor vehicle on a public street in the Australian Capital Territory with a blood alcohol content of level 3.

He was convicted, fined $700 (plus $57.00 costs) and disqualified from holding a driver’s licence for 18 months. Those penalties are within the statutory maxima (see ss 26, 33(2) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the RT (A&D) Act).

The amended notice of appeal (dated 21 August 2007) complained that:

His Honour’s sentencing discretion miscarried on a misapprehension of the operation and effect of section 33 of the Road Transport (Alcohol and Drugs) Act 1977 and section 67 of the Road Transport (General) Act 1999.

Those provisions are as follows:

33.Road Transport (Alcohol and Drugs) Act 1977
Automatic driver licence disqualification – repeat offenders, s 19
(1) This section applies only to repeat offenders.
(2) If a court convicts a special driver of an offence against section 19(1) and finds that the concentration of alcohol in the person’s blood was at a level mentioned in an item of column 2 of an item of table 33, the person is automatically disqualified from holding and obtaining a driver licence for –
(a)the period mentioned in column 4 of that item; or
(b)if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item – the shorter period.

(3) If a court convicts a person other than a special driver of an offence against section 19(1) and finds that the concentration of…

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

Case: [2008] ACTSC 7
Decision Date: 5 February 2008

CaseChat Overview and Summary

The appeal arose from a case involving Ben William McGregor, the appellant, who was appealing against a decision made by Peter Matthew Maguire, a magistrate. The crux of the dispute was centred around McGregor's disqualification from driving following an alcohol and drug-related offence. The court hearing this case was the higher court, exercising its appellate jurisdiction over the decision made by the magistrate.

The legal issues before the court involved the interpretation and application of the relevant sections of the Road Transport Act. Specifically, the court had to determine the appropriate length of the disqualification period for a repeat offender who had been charged with a level 3 PCA offence. The court also needed to assess whether the magistrate had erred in his determination of the disqualification period.

The court found that the magistrate had indeed made an error in the assessment of the disqualification period. The court held that the correct approach was to consider the totality of the circumstances, including the fact that McGregor was a repeat offender. The court concluded that a 12-month disqualification period was more appropriate than the 18 months imposed by the magistrate. The appeal was thus upheld, and the disqualification period was reduced to 12 months. The remainder of the sentence was confirmed, and the parties were directed to be heard regarding any consequential orders.

Orders

Orders of the court

1. The appeal be upheld;

2. The period of disqualification imposed by the magistrate be reduced to 12 months;

3. The sentence save as to the period of disqualification be confirmed;

4. Parties be heard as to consequential orders.

Background

Background to the litigation

Full text does not contain this section.

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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