Cantwell v Nozhat

[2017] ACTSC 14

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Cantwell v Nozhat

Citation:

[2017] ACTSC 14

Hearing Date:

1 February 2017

DecisionDate:

3 February 2017

Before:

Robinson AJ

Decision:

See [22] – [25]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – manifestly inadequate – negligent driving – resulting in grievous bodily harm – appeal allowed – re-sentenced offender.

Legislation Cited:

Magistrates Court Act 1930 (ACT) ss 219B, 219F

Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 6

Crimes (Sentencing) Act 2005 (ACT) ss 7, 17

Parties:

Phillip Cantwell (Crown)

Spozmai Nozhat (Defendant)

Representation:

Counsel

Ms R Christensen (Crown)

Mr J Lawton (Defendant)

Solicitors

ACT Director of Public Prosecutions (Crown)

Capital Lawyers (Defendant)

File Number:

SCA 58 of 2016

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Cook

Date of Decision:         15 August 2016

Case Title:  Cantwell v Nozhat    

Court File Number:       180431

Robinson AJ:

1. The informant Phillip Cantwell appeals to the Supreme Court under division 3.10.3 of the Magistrates Court Act1930 (ACT), against the outcome of two charges laid against Ms Nozhat, whom I will refer to as the defendant in these reasons. It was alleged that the defendant drove a motor vehicle negligently causing grievous bodily harm to two cyclists on 15 April 2015.

1. The two charges were brought under s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and attract a maximum penalty of 1 year imprisonment or 100 penalty units or both.

1. Ms Nozhat pleaded not guilty to both charges and a hearing followed. Magistrate Cook found both offences proved. The issue litigated, in general terms, was whether the Crown had proved, beyond reasonable doubt, that the driving in question was a departure from the standard of care expected of the ordinary prudent driver in the circumstances prevailing at the time.

1. The appeal was bought against the disposition of the charges by the Magistrate after this finding had been made. The sole ground of appeal was that “His Honour erred in imposing a sentence that in all of the circumstances was manifestly inadequate”. That ground of appeal is expressly provided for provided for in s 219B(1)(f) of the Magistrates Court Act.

Circumstances of the Offences

1. It is necessary to briefly set out some of the findings as to liability so far as they are relevant to the ground of appeal. His Honour found that:

At about 7.13 am on Wednesday, 15 April 2015 you were driving your dark grey Mazda CX5 station wagon, registration [redacted for legal reasons] in the eastbound lane on Baldwin Drive, Giralang, the eastbound lane being a dual carriageway and the westbound lane a single carriageway. Heading eastbound along Baldwin Drive you would have encountered a left-hand bend followed by a straight and slight incline. The section of the straight road is about 150 meters before the crest of the incline.

At the crest of the incline a collision occurred with cyclists…