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Butler v Vickers

Butler v Vickers

Case [2011] ACTSC 134 24 August 2011

Appeal

Breach of Contract

Drive Whilst Disqualified

Sentencing

Criminal Law

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HUMAN RIGHTS ACT

DAVID BUTLER v DANIEL JAMES VICKERS, LOUISE YATES
AND BRETT KATZ
[2011] ACTSC 134 (24 August 2011)

APPEAL AND NEW TRIAL – appeal from Magistrates Court – appeal against sentence of imprisonment – not manifestly excessive.

APPEAL AND NEW TRIAL – appeal from Magistrates Court – litigant in person – assistance by the court – specific errors identified – appeal allowed.

CRIMINAL LAW – particular offences – drive whilst disqualified – elements of the culpability of the offence.

Road Transport (Driver Licensing) Act 1999 (ACT), s 32
Crimes (Sentence Administration) Act 2005 (ACT), ss 107, 108, 110
Road Transport (Offences) Regulation 2005 (ACT), s 17, Sch 1
Crimes (Sentencing) Act 2005 (ACT), ss 7, 29, 33, 37, 63
Magistrates Court Act 1930 (ACT), s 216, Div 3.10.2
Human Rights Act 2005 (ACT), s 18

Woodward v Morgan (1990) 10 MVR 474
Re appeal of White (1987) 9 NSWLR 427
R v Loughnan [1981] VR 443
Cardillo v Taylor (1999) 29 MVR 301
Cotter v Corvisy (2008) 1 ACTLR 299
Ledson v Taylor and Ors [2010] ACTSC 42
Veen v The Queen (No 2) (1988) 164 CLR 465
Apolevski v Kinnane [2010] ACTSC 43
R v Harris [2007] NSWCCA 130
Elson v Ayton and Ors [2010] ACTSC 70
Maxwell v The Queen (1996) 184 CLR 501
Taylor v Bowden [2009] ACTSC 13
R v Cooke [2007] NSWCCA 184
Saga v Reid and Anor [2010] ACTSC 59
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Neil v Nott and Anor (1994) 121 ALR 148
Mill v The Queen (1988) 166 CLR 59
Craft v Diebert [2004] ACTCA 15
Talukder v Dunbar (2009) 194 A Crim R 545
R v Storey [1998] 1 VR 359
Coombe v Douris (1987) 47 SASR 324
Selles and Ors v Bailey [2000] ACTSC 111
Hawkins v Hawkins (2009) 3 ACTLR 210
Pettitt v Dunkley [1971] 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
R v Ravet [2011] SASCFC 67
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
R v Huat Phay [2009] ACTSC 130
R v Popovski [2009] ACTSC 131
Arman v Wall and Anor [2008] ACTSC 61
Elson v Ayton [2010] ACTSC 70
R v Gorman [2009] ACTSC 7

AB v The Queen (1999) 198 CLR 111

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 81 of 2010

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 24 August 2011

IN THE SUPREME COURT OF THE       )
  )          No. SCA 81 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

DAVID BUTLER
Appellant

v

DANIEL JAMES VICKERS, LOUISE YATES AND BRETT KATZ

Respondents

ORDER

Judge:  Refshauge ACJ
Date:  24 August 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appellant be given leave to amend the grounds of appeal in the Notice of Appeal to include as additional grounds the following:

(a) failing to give reasons for not taking the pre-sentence…

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 Butler v Vickers

Details

AGLC: Butler v Vickers [2011] ACTSC 134
Case: [2011] ACTSC 134
Decision Date: 24 August 2011

CaseChat Overview and Summary

The appeal was brought by David Butler against the sentences handed down by the Magistrates Court for three separate offences of driving while disqualified. The appeal was heard in the Supreme Court of the Australian Capital Territory. Butler was appealing against the sentence of imprisonment given for the three offences, arguing that it was manifestly excessive. Additionally, Butler, who was a litigant in person, sought the court's assistance in identifying specific errors made by the Magistrates Court.
The court had to decide whether the appeal against the sentence was valid and whether the sentences given were indeed manifestly excessive. Furthermore, the court had to consider the specific errors Butler had identified in the Magistrates Court's sentencing process and determine whether these errors warranted a new trial or an amendment to the sentence.
The Supreme Court found that the appeal was not against the sentence being manifestly excessive, but rather against the specific errors made during sentencing. The court allowed the appeal, finding that the Magistrates Court had failed to provide reasons for not taking the pre-sentence custody into account, had not expressed the amount of discount given for the plea of guilty, and had made an error in the period of the sentence. The convictions for the three offences of driving while disqualified were confirmed, and the sentences were amended accordingly. The court also directed that Butler was to serve the balance of his term of imprisonment by periodic detention and that he was to comply with specific good behaviour obligations and be disqualified from holding or obtaining a driver's licence until a court otherwise ordered.

Orders

Orders of the court

THE COURT ORDERS THAT: The appellant be given leave to amend the grounds of appeal in the Notice of Appeal to include as additional grounds the following:(a) failing to give reasons for not taking the pre-sentence custody into account;(b) failing to express the amount of discount given for the plea of guilty; and(c) error in the period of the sentence.The appeal be allowed.The convictions entered in the Magistrates Court for each of the three offences of driving whilst disqualified being a first offender be confirmed.THE COURT FINDS THAT:Mr Butler has committed an offence during the period of the Good Behaviour Order made on 27 August 2008.THE COURT FURTHER ORDERS THAT:The Good Behaviour Order made on 27 August 2008 be cancelled and the period of the sentence of imprisonment then suspended be imposed to commence on 11 February 2011.For the offence of driving whilst disqualified on 8 January 2010, David Butler be imprisoned for three months to commence on 11 May 2011.For the offence of driving whilst disqualified on 5 April 2010, David Butler be imprisoned for three months to commence on 11 May 2011.For the offence of driving whilst disqualified on 16 July 2010, David Butler be imprisoned for four months to commence on 11 August 2011.THE COURT DIRECTS THAT:From 24 August 2011 until 10 December 2011, David Butler is to serve the balance of the term of imprisonment by periodic detention, and that the first detention period start on Friday 26 August 2011 when he is to report for periodic detention to the Symonston Periodic Detention Centre.David Butler is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) from 24 August 2011 for a period of eighteen months with a condition that he not drive a motor vehicle on a public road or in a public place, nor be in the driver’s seat of a motor vehicle whilst it is on a public road or in a public place for the period of the Good Behaviour Order.David Butler is disqualified from holding or obtaining a driver licence under the Road Transport (Driver Licensing) Act 1999 (ACT) until a court otherwise orders.

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.

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Citations

Butler v Vickers [2011] ACTSC 134

Most Recent Citation

Garoup Bol Guak Dhol v Jane Glenda MacKenzie [2011] ACTSC 193

Cases Citing This Decision

Urlich v The Queen [2019] ACTCA 30
Citation 1

…Arman v Wall [2008] ACTSC 61 Butler v Vickers [2011] ACTSC 134 Chatfield v Badman [2015] ACTSC 209 Cooper v The Queen [2009] NSWCCA 57 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions (Vic) v Weidlich [2008] VSCA 203…
Bedford v Earle (No 2) [2015] ACTSC 309
Citation 2 (Para 1)

…not directed to start on a day before it was imposed (under s 63(1) of the Crimes (Sentencing) Act ) as is almost universally done: Butler v Vickers [2011] ACTSC 134 at [82]. It is also the preferable course to take when taking into account pre-sentence custody: Hawkins v Hawkins (2009) 3 ACTLR 210 at 226-7; [79].…
Gavin Massey v Yves Naspe [2012] ACTSC 161
Citation 3 (Para 1)

…n into custody on charges CC 2012/2451 and CC 2012/2452. As was made clear in Hawkins v Hawkins [2009] ACTSC 148 and Butler v Vickers, Yates and Katz [2011] ACTSC 134, s 63 grants a sentencing court a discretion to backdate a sentence. It is only if the sentencer exercises that discretion that s 63 (2) obliges him…
Westin v Gordon [2012] ACTSC 44
Citation 4 (Para 1)

…hile the factual substratum of the two offences is similar, they are offences which are different and exhibit different culpability: Butler v Vickers [2011] ACTSC 134 at [34]–[37]. Nevertheless, the earlier traffic offences limited, but did not entirely cancel, the leniency that could be given her.…
Robertson v Leferve [2012] ACTSC 22
Citation 5 (Para 1)

…swore an information in this Court deposing that the appellant had failed to accept supervision. This was the process I described in Butler v Vickers [2011] ACTSC 134 (at [9]) for bringing an allegation of breach of a good behaviour order before the Supreme Court.…
Garoup Bol Guak Dhol v Jane Glenda MacKenzie [2011] ACTSC 193
Citation 6 (Para 1)

…Mr Dhol has certainly continued to drive without a licence, but that does not appear to be in defiance of court orders. See Butler v Vickers and Ors [2011] ACTSC 134 (at [34] to [37]). He has, for example, not been convicted of any charge of driving whilst disqualified. The assertion, therefore, that he “is not go…

See all citing cases →

Cases Cited

Thurlow v The Queen [2021] VSCA 71
Citation 1

…See also R v Bennett [1975] Crim LR 654. 63.As the Full Court of the Supreme Court of Victoria said in R v Renzella [1997] 2 VR 88 at 97 “a court is not only empowered but obliged as a matter of justice to take pre-sentence detention into account.” Such an approach has been said to be “long standing senten…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53
Citation 2 (Para 1)

…Reasons are an important part of the administration of justice: Pettitt v Dunkley [1971] 1 NSWLR 376 (at 382, 388); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 279).…
R v Ravet [2011] SASCFC 67
Citation 3 (Para 1)

…ance in explaining to the offender why the punishment is to be imposed. As Sulan J (with whom Duggan and David JJ agreed) said (at [37]) in R v Ravet [2011] SASCFC 67:…
Cooper v Corvisy (No 2) [2010] ACTSC 166
Citation 4 (Para 1)

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.…
Elson v Ayton [2010] ACTSC 70
Citation 5 (Para 1)

…ad been referred, Cotter v Corvisy, Apolevski v Kinnane [2010] ACTSC 43 and also to R v Harris [2007] NSWCCA 130, as applied in Elson v Ayton and Ors [2010] ACTSC 70.…
Saga v Reid [2010] ACTSC 59
Citation 6 (Para 1)

…istration Act , as to which see R v Cooke [2007] NSWCCA 184 (at [18]), before imposing the sentence. I addressed these issues in Saga v Reid and Anor [2010] ACTSC 59 (at [109] to [114]).…
Apolevski v Kinnane [2010] ACTSC 43
Citation 7 (Para 1)

…Her Honour then referred to decisions to which she had been referred, Cotter v Corvisy, Apolevski v Kinnane [2010] ACTSC 43 and also to R v Harris [2007] NSWCCA 130, as applied in Elson v Ayton and Ors [2010] ACTSC 70.…
Ledson v Taylor [2010] ACTSC 42
Citation 8 (Para 1)

…egime. That regime, of course, is no mere revenue raising device, but part of the protection of the public, as I explained in Ledson v Taylor and Ors [2010] ACTSC 42 (at [71]).…
Hawkins v Hawkins [2009] ACTSC 148
Citation 9 (Para 1)

…The common law, however, is somewhat more directive on this issue, which I addressed in Hawkins v Hawkins (2009) 3 ACTLR 210 (at 223-4; [61] to [63]):…
R v Huat Phay [2009] ACTSC 130
Citation 10 (Para 1)

…Although criticised as “artificial” by Rares J in R v Huat Phay [2009] ACTSC 130 (at [26]), his Honour did in that case, and subsequently in R v Popovski [2009] ACTSC 131 (at [23]), do what the section requires.…
R v Popovski [2009] ACTSC 131
Citation 11 (Para 1)

…criticised as “artificial” by Rares J in R v Huat Phay [2009] ACTSC 130 (at [26]), his Honour did in that case, and subsequently in R v Popovski [2009] ACTSC 131 (at [23]), do what the section requires.…
Talukder v Dunbar [2009] ACTSC 42
Citation 12 (Para 1)

…That is not the correct position. I addressed this in Talukder v Dunbar (2009) 194 A Crim R 545 (at 548-50); [16] to [25]). In particular, I referred to what had been said by Winneke, Brooking and Hayne JJA and Southwell AJA in R v Storey [1998] 1 VR 359 (at 371) as follows:…
Taylor v Bowden [2009] ACTSC 13
Citation 13 (Para 1)

…While imposing the sentences in the order in which chronologically the offences were committed may be appropriate, as to which see Taylor v Bowden [2009] ACTSC 13 (at [47]), it is necessary first to enter the conviction (or make the finding of guilt) for the offence or offences which constitute the breach of the G…
R v Gorman [2009] ACTSC 7
Citation 14 (Para 1)

…should be referred back to the sentencer. It is necessary even for small amendments to be made after notification to the parties. See R v Gorman [2009] ACTSC 7.…
Cotter v Corvisy [2008] ACTSC 64
Citation 15 (Para 1)

…be made between driving whilst unlicensed and driving whilst disqualified, as was done in Cardillo v Taylor (1999) 29 MVR 301 (at 304; [20]) and Cotter v Corvisy (2008) 1 ACTLR 299 (at 304; [18]).…
Arman v Wall [2008] ACTSC 61
Citation 16 (Para 1)

…In Arman v Wall and Anor [2008] ACTSC 61, Penfold J considered the effect of a failure to comply with the obligation that s 37 of the Act imposes upon sentencers. Her Honour held (at [26]) that, in the case under consideration, the failure to either explain why the discount was not given or to give a discount and…
R v Cooke; Cooke v The Queen [2007] NSWCCA 184
Citation 17 (Para 1)

…onstitute the breach of the Good Behaviour Order and then cancel the order under s 110 of the Sentence Administration Act , as to which see R v Cooke [2007] NSWCCA 184 (at [18]), before imposing the sentence. I addressed these issues in Saga v Reid and Anor [2010] ACTSC 59 (at [109] to [114]).…
Sultana v Regina [2007] NSWCCA 107
Citation 18 (Para 11)

…e to take pre-sentence detention into account.” Such an approach has been said to be “long standing sentencing practice”: Sultana v The Queen [2007] NSWCCA 107 at [11]. See also R v Marshall [1993] 2 Qd R 307 at 312.…
R v Harris [2007] NSWCCA 130
Citation 19 (Para 1)

…Her Honour then referred to decisions to which she had been referred, Cotter v Corvisy, Apolevski v Kinnane [2010] ACTSC 43 and also to R v Harris [2007] NSWCCA 130, as applied in Elson v Ayton and Ors [2010] ACTSC 70.…
Craft v Diebert [2004] ACTCA 15
Citation 20 (Para 1)

…d in the context of the third offence. By itself, such hardship is not an inevitable contra-indication to full-time imprisonment: Craft v Diebert [2004] ACTCA 15 (at [9] to [10]).…
Cardillo v Taylor [1999] WASCA 166
Citation 21 (Para 1)

…ces into account, it is preferable for a distinction to be made between driving whilst unlicensed and driving whilst disqualified, as was done in Cardillo v Taylor (1999) 29 MVR 301 (at 304; [20]) and Cotter v Corvisy (2008) 1 ACTLR 299 (at 304; [18]).…
AB v The Queen [1999] HCA 46
Citation 22 (Para 1)

…means that the sentence should be set aside. As I have found specific error, I must re-sentence Mr Butler. As Hayne J said (at 160) in AB v The Queen (1999) 198 CLR 111,…
Maxwell v The Queen [1996] HCA 46
Citation 23 (Para 1)

…. The imposition of the sentences, however, amounted, in the circumstances, to convictions as was said by Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501 (at 507). Nevertheless, her Honour first dealt with the breach of the Good Behaviour Order which, of course, was not proved until she had entered a c…
Neil v Nott [1994] HCA 23
Citation 24 (Para 1)

…ay mean that the court has to help to formulate the case of a litigant, who appears in person. As a unanimous High Court said in Neil v Nott and Anor (1994) 121 ALR 148 (at 150):…
Mill v The Queen [1988] HCA 70
Citation 25

…] NSWCCA 184 Saga v Reid and Anor [2010] ACTSC 59 Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 Neil v Nott and Anor (1994) 121 ALR 148 Mill v The Queen (1988) 166 CLR 59 Craft v Diebert [2004] ACTCA 15 Talukder v Dunbar (2009) 194 A Crim R 545 R v Storey [1998] 1 VR 359 Coombe v Douris (1987) 47 SASR 324 Selles and Or…
Veen v The Queen (No 2) [1988] HCA 14
Citation 26 (Para 1)

…ffender”. That does not mean that a sentencer cannot take into account other offences for proper purposes as outlined in Veen v The Queen (No 2 ) (1988) 164 CLR 465. The way her Honour articulated it, however, may have given an impression that she was really treating Mr Butler as a repeat offender. An appellate court…
R v White [1968] HCA 19
Citation 27 (Para 1)

…me authorities that might have provided some support for such a defence (see, for example, Woodward v Morgan (1990) 10 MVR 474 and Re appeal of White (1987) 9 NSWLR 427), the actual circumstances do not, for his home was within walking distance of the court and, in any event, being late, though completely undesirable…
[2000] ACTSC 111 [2000] ACTSC 111
Citation 28 (Para 1)

…ponse the courts make to such offences that “there is a very real likelihood that [the offender] will be sent to prison”: Selles and Ors v Bailey [2000] ACTSC 111 (at [22]).…
[1975] 1 WLR 1012 [1975] 1 WLR 1012
Citation 29

…61.At common law, it was not possible to direct that a sentence should commence prior to the date on which it was imposed: R v Gilbert [1975] 1 WLR 1012 at 1017; R v Frederico ; Ex parte Attorney-General (Vic) [1971] VR 425 at 427, 431; Wills v Webster [1968] Tas SR (NC 21). 62.This did not mean that, at common law,…
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Citation 30 (Para 1)

…Reasons are an important part of the administration of justice: Pettitt v Dunkley [1971] 1 NSWLR 376 (at 382, 388); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 279).…
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Citation 31 (Para 1)

…Of course, the extent of the duty depends on the nature of the decision: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (at 443-4). In this case, what was involved concerned whether the nine days of pre-trial custody should be given the full weight of constituting service of that portion of the term of…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 29, 33, 37, 63, 7
6 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT) 107, 108, 110
4 mentions (from Para 1)
Human Rights Act 2005 (ACT) 18
2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT) 216
2 mentions (from Para 1)
Road Transport (Driver Licensing) Act 1999 (ACT) 32
2 mentions (from Para 1)