Brian Hatch v James Sutherland

[2013] ACTSC 98

BRIAN HATCH v JAMES SUTHERLAND
[2013] ACTSC 98 (27 MAY 2013)

Crimes (Sentencing) Act2005 (ACT) s 17, s 18

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 15 of 2013

Judge:             Nield AJ
Supreme Court of the ACT

Date:              27 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 15 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BRIAN HATCH

Appellant

AND:JAMES SUTHERLAND

Respondent

ORDER

Judge:  Nield AJ
Date:  27 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed to the extent of reducing the disqualification period from 12 months to 6 months.

1. On 21 December 2012 the appellant, Mr Brian Hatch, was found to be driving a motor vehicle upon a public street of the Territory when he had the proscribed level 4 concentration of alcohol in his breath.  The level was 0.177 grams of alcohol in 210 litres of breath. 

1. On 20 February 2013 the appellant appeared before Magistrate Mossop in the ACT Magistrates Court to answer the charge.  He pleaded guilty to the charge.  Magistrate Mossop received the statement of facts from the prosecutor and three testimonials from friends of the appellant from the appellant’s legal representative. 

1. Considering the circumstances in which the offence was committed, the breath alcohol level and the appellant’s character and antecedents, Magistrate Mossop determined to exercise his discretion pursuant to section 17(2)(a) of the Crimes (Sentencing) Act 2005 (ACT). Accordingly, without proceeding to conviction, he dismissed the charge being satisfied that it was inappropriate to impose any punishment.

1. However, Magistrate Mossop, exercising a power under section 18(2) of the Act, made an order that the appellant’s driver licence be suspended for 12 months from, effectively, 21 December 2012.

1. Section 18(2) of the Act empowers a court to impose an ancillary order, having exercised a discretion under section 17 of the Act. Section 18 of the Act, by subsection 5, defines “ancillary order” to mean “an order or direction in relation to ... disqualification or loss or suspension of a licence or privilege” (see ss 5(f)).

1. Clearly, Magistrate Mossop had the power to disqualify the appellant from holding or obtaining a driver licence under the relevant legislation for such period as he determined to be appropriate.  The question is whether or not the period determined by Magistrate Mossop to be appropriate is excessive.

1. In my view, notwithstanding that I have not seen the appellant’s driver record - something that I have said should be made available to the magistrate or judge who deals with an offender for this type of offence ‑ as the onus lay upon the Crown to present that record, and the Crown failed to do so, I cannot see any reason why I should consider whatever is the appellant’s driver record, and in the absence of considering that record I consider that the minimum period of 6 months is an appropriate period of disqualification.

1. Accordingly, I allow the appeal to the extent of reducing the disqualification period from 12 months to 6 months.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Associate:
Date:  29 May 2013          

Counsel for the Appellant:  Mr P Edmonds
Solicitor for the Appellant:  Mark Fleming Lawyers
Counsel for the Respondent:  Mr J Hiscox
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  27 May 2013
Date of judgment:  27 May 2013