Benjamin Taylor v Blake McClintock
[2015] ACTSC 319
•20 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Benjamin Taylor v Blake McClintock |
Citation: | [2015] ACTSC 319 |
Hearing Date(s): | 20 October 2015 |
DecisionDate: | 20 October 2015 |
Before: | Robinson AJ |
Decision: | See [20]-[21]. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Appeal – error in imposition of disqualification period |
Legislation Cited: | Australian Road Rules (ACT), r 132(2) Bail Act 1992 (ACT), s 49(1) Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6 |
Parties: | Benjamin John Taylor (Appellant) Blake McClintock (Respondent) |
Representation: | Counsel Ms K Bolas (Appellant) Mr S McLaughlin (Respondent) |
| Solicitors Kim Bolas Criminal Law Specialist (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 52 of 2015 |
ROBINSON AJ:
On 27 June 2015 Magistrate Fryar convicted Benjamin John Taylor, the Appellant, of four offences. These were:
(a)Assault, in contravention of s 26 of the Crimes Act.
(b)Negligent driving, in contravention of s 6 of the Road Transport (Safety and Traffic Management) Act.
(c)Not keeping left of dividing lines, in contravention of rule 132(2) of the Australian Road Rules.
(d)Fail to appear, in contravention of s 49(1) of the Bail Act.
Magistrate Fryar imposed the following penalties:
(a)In relation to the assault charge the Appellant was convicted and sentenced to six months imprisonment, suspended forthwith (with 46 days having been served) on entering a Good Behaviour Order for a period of 18 months. The Good Behaviour Order included a condition that the Appellant be subject on probation to the supervision of the Director General for a period of 12 months (or such lesser period as deemed appropriate).
(b)In relation the charge of negligent driving, the Appellant was convicted and ordered to enter a Good Behaviour Order for a period of 18 months, including a condition that the Appellant be subject on probation to the supervision of the Director General for a period of 12 months (or such lesser period as is deemed appropriate). Further, the Appellant was disqualified from holding or obtaining a licence for a period of three months.
(c)In relation to the charge of not keeping left of dividing lines, the Appellant was convicted and ordered to enter a Good Behaviour Order for a period of 18 months, including a condition that the Appellant be subject on probation to the supervision of the Director General for a period of 12 months (or such lesser period as is deemed appropriate).
(d)In relation to the charge of fail to appear, the Appellant was convicted and ordered to enter a Good Behaviour Order for a period of 18 months, including a condition that the Appellant be subject on probation to the supervision of the Director General for a period of 12 months (or such lesser period as is deemed appropriate).
I interpolate here to record that the Registry has failed to record the sentences accurately. Those records will need to be corrected.
By an Amended Notice of Appeal, the Appellant appeals from the conviction of negligent driving. He also appeals from the sentence imposed for that offence.
The appeal is brought under Part 3.10 of the Magistrates Court Act 1930.
I have set out the other offences and sentences, for the Crown submits I should have regard to them in considering the merits of the appeal on the offence of negligent driving.
The Appellant has also given notice of an application to call further evidence on appeal.
Negligent Driving
First, it appears from the facts that this offence has some relationship to the assault. The erratic driving occurred immediately after that assault and may have been evidence of the emotional effects of the assault.
Second, the prosecutor said to the Magistrate (transcript page 8, lines 33-36):
In terms of the negligent driving and the double white lines charge, in my submission, they fall at the lower end of the spectrum of objective seriousness and I don’t wish to say any more about those.
Third, the defence counsel made no submission on conviction or penalty.
Fourth, the Magistrate said (transcript page 11, lines 10-14):
In relation to the driving charges, you’ll be convicted, and I’ll make a good behaviour order, pursuant to section 13 in the same terms and, as I think you heard me say, the negligent driving charge has a mandatory disqualification – minimum disqualification period of three months. I will only impose that minimum period of disqualification.
Fifth, there was no mention of the Appellant’s driving record by the Magistrate.
Sixth, there is not a mandatory penalty of three months disqualification for negligent driving. A discretionary disqualification may be imposed.
Conviction
The Appellant sought to have me apply the provisions of s 17 of the Crimes (Sentencing) Act and not convict the offender of the offence and instead make a non-conviction order.
I decline to do so having regard to the offending (set out below), the offender’s character and antecedents.
Sentence
I am satisfied that error has been shown in the sentence imposed in respect of the negligent driving charge.
The Appellant will be re-sentenced.
I would have allowed further evidence to be tendered under s 214(4) of the Magistrates Court Act and waived precise compliance with the rules of Court. I was satisfied in the circumstances that there was a reasonable explanation for the failure to adduce the evidence. Counsel for the Appellant, who also appeared below told me, and I accept, that the mandatory disqualification imposed took her by surprise.
The Statement of facts, relevantly, records:
About 9:50am, an unmarked Police sedan was travelling east on Chuculba Crescent on the approach to Canopus Crescent, when the [Appellant’s] vehicle has overtaken at speed over the centre, double unbroken white lines.
As the vehicle attempted to turn into Canopus Crescent, it has appeared to understeer towards the eastern side of the road. Police observed the vehicle brake and the rear wheels to lock up causing it to lose traction and skid towards the gutter.
The vehicle avoided the gutter, turned into Canopus Crescent and accelerated at speed away from the intersection. As the vehicle accelerated, Police observed a sustained loss of traction from one of the vehicle’s rear tyres for a number of metres as it travelled south on Canopus Crescent.
The vehicle continued along Canopus Crescent at excessive speed, and Police lost sight of it turning right into Balamara Street.
At the time of the incident, the weather was fine, the bitumen road surface was in good condition and dry, vehicular traffic was medium and there was no pedestrian traffic.
The Appellant is now aged 33. The Crown was unable to prove that the Appellant had any prior driving offences whatsoever.
In the circumstances, I propose to delete the order for disqualification from the sentence imposed. I propose to not alter the remaining sentence for the offence. I take this course only because it is consistent with the approach that the Magistrate took to the three remaining offences. Standing alone, I would not believe an 18 month Good Behaviour Order would be appropriate to an offence of negligent driving. There was no submission by counsel for the Appellant that I disturb the Magistrate’s approach in imposing a Good Behaviour Order for this offence.
Order
I order that the appeal be allowed to the extent outlined at [20] above.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: D.Hoitink Date: 20 October 2015 |
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