Bialecki v Rollings - [2020] ACTSC 344

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bialecki v Rollings

Citation:

[2020] ACTSC 344

Hearing Dates:

23 November 2020 and 11 December 2020

Decision Date:

16 December 2020

Before:

McWilliam AsJ

Decision:

See [68]

Catchwords:

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court against conviction and sentence – whether Magistrates Court erred in the assessment of objective seriousness – whether aggravating circumstance proved beyond reasonable doubt – whether error in finding of no extenuating circumstances – whether appropriate for appellate court to re-sentence – whether

non-conviction order should be made

Legislation Cited:

Crimes Act 1900 (ACT) s 49A
Crimes (Sentencing) Act 2005 (ACT) ss 17, 33
Magistrates Court Act 1930 (ACT) pt 3.10
Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4B, 4C,
4E, 19, 26

Cases Cited:

Acuthan v Coates (1986) 6 NSWLR 472
Filippou v The Queen [2015] HCA 29; 256 CLR 47
Hambrook v Duke [2014] ACTSC 203
House v The King (1936) 55 CLR 499
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Leljak v Fitzroy [2015] ACTSC 247

Minister for Immigration and Ethnic Affairs v Wu Shan Liang

(1996) 185 CLR 259
Mulato v R [2006] NSWCCA 282
Olds v Daire (1981) 29 SASR 133
Proud v Sladic [2014] ACTCA 26
Vickers v R [2020] NSWCCA 297

Parties:

Kazik Bialecki (Appellant)
Tracy Rollings (Respondent)

Representation:

Counsel

B Morrisroe (Appellant) M Howe (Respondent)

Solicitors

Sharman Robertson (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 44 of 2020

Decision under appeal:

Court/Tribunal:	Magistrates Court of the ACT
Before:	Magistrate Boss
Date of Decision:	13 August 2020
Case Title:	The Police v Bialecki
Court File Number:	CC 5348 of 2020

McWilliam AsJ:

Introduction

1. On Friday 24 April 2020, the appellant was involved in a single motor vehicle accident on Tralee Street in Hume. He subsequently returned a breath alcohol reading of 0.068 grams of alcohol per 210 litres of exhaled breath. Under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the RT Act), and with specific reference to the circumstances of this case, an offence is committed if a person has been the driver of a motor vehicle on a road and has the prescribed concentration of alcohol (PCA) in the
person’s blood or breath. For the appellant, the PCA was 0.05 grams or more of alcohol
in 210 litres of breath (see s 4C of the RT Act).
2. A summons was issued on 3 June 2020 (CC2020/5348), charging the appellant with an offence against s 19(1) of the RT Act. The appellant pleaded guilty in the court below and on 13 August 2020, was convicted, fined $400, and disqualified from driving for a period of two months.
3. The appellant appeals from the sentence, including the conviction, pursuant to pt. 3.10 of the Magistrates Court Act 1930 (ACT). In summary, the four grounds that were pressed on appeal were as follows:

(a) The court below…

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 Bialecki v Rollings

Details

AGLC: Bialecki v Rollings [2020] ACTSC 344
Case: [2020] ACTSC 344
Decision Date: 23 November 2020

CaseChat Overview and Summary

Bialecki v Rollings is an appeal by the respondent against his conviction and sentence in the Magistrates Court for assault occasioning actual bodily harm. The appeal questions the Magistrates Court's assessment of the objective seriousness of the offence, the proof of an aggravating circumstance, the finding of no extenuating circumstances, and whether the appellate court should re-sentence. The appeal also touches on the broader considerations of sentencing in cases involving assault causing harm.

The primary legal issues before the court were whether the Magistrates Court had erred in assessing the objective seriousness of the offence, whether the aggravating circumstance was proved beyond reasonable doubt, and whether there was an error in the finding of no extenuating circumstances. The court was also tasked with determining if it was appropriate for the appellate court to re-sentence the respondent.

In addressing these issues, the court meticulously examined the evidence presented and the reasoning employed by the Magistrates Court. The appellate court found that the Magistrates Court had not erred in its assessment of the objective seriousness of the offence or in the proof of the aggravating circumstance. However, the court identified an error in the finding of no extenuating circumstances. Despite this, the appellate court concluded that it was not appropriate to re-sentence the respondent, considering the factors involved in the case. The appeal was dismissed, and the original conviction and sentence were upheld.

The court ordered that the appeal be dismissed and the original conviction and sentence of the Magistrates Court be upheld. The court did not alter the sentence, finding that the original sentence was appropriate given the circumstances of the case.

Orders

Orders of the court

See [68]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.