Cruise v Fall
[2020] ACTSC 346
•17 December 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cruise v Fall |
Citation: | [2020] ACTSC 346 |
Hearing Date: | 17 December 2020 |
DecisionDate: | 17 December 2020 |
Before: | Elkaim J |
Decision: | See [17] |
Catchwords: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT –manifest excess – licence disqualification |
Legislation Cited: | Road Transport (General) Act 1999 (ACT) s 65 |
Parties: | Belinda Anne Cruise (Appellant) Nicholas Alan Fall (Respondent) |
Representation: | Counsel S McLaughlin (Appellant) V Conliffe (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Department of Public Prosecutions (Respondent) | |
File Number: | CA 46 of 2020 |
ELKAIM J:
On 27 August 2020 the appellant was sentenced by Magistrate Boss as follows:
(a)On the charge of refusing to provide a breath sample the appellant was placed on a Good Behaviour Order for two years, she was directed to complete 80 hours of community service and her licence was disqualified indefinitely (at least until further order).
(b)On a charge of assault the appellant was again placed on a Good Behaviour Order for two years but with the added condition of completing 100 hours of community service.
The appellant says the total of 180 hours of community service was manifestly excessive. In respect of the licence disqualification she says that the learned Magistrate did not properly apply the provisions of the Road Transport (General) Act 1999 (ACT).
The parties agree that before the Magistrate’s decision can be changed it is necessary for me to identify error. The respondent did not concede any error on the part of the Magistrate.
I will deal with the submissions made about the above Act first. The appellant made two points. Firstly she said that the Magistrate had not complied with s 65(7)(c) because she had not properly considered the matters required by this subsection. I disagree.
It is true that the Magistrate did not in terms set out the “relevant rehabilitation or remedial action undertaken, or to be undertaken, by the person”. This was especially so, said the appellant, after her lawyer had specifically asked the Magistrate to take into account the steps the appellant had taken by way of rehabilitation.
The Magistrate, at page 7 of the sentence transcript specifically referred to the CADAS Report and said she took its contents into account. She also said that she took into account the contents of Exhibit A. This is where the relevant rehabilitation material existed. Her Honour then said:
Rehabilitation in the circumstances becomes a highly relevant sentencing consideration.
This was an Ex tempore judgment in a busy list. In my view, while it may have been preferable for there to have been a more detailed analysis of Exhibit A, it is apparent that the Magistrate took the relevant matters into account. That point of appeal therefore fails.
The second point relates to the indefinite nature of the disqualification. Such an order is available under s 65(2) but only if it is “necessary in the public interest to do so”.
The public interest, in these circumstances, must refer to keeping the offender off the road in order to ensure the safety of the public. The Magistrate said:
In all the circumstances, I am satisfied that a period of 12 months’ disqualification is sufficient to protect the community, however you will then be disqualified until further order of the court.
If disqualification for 12 months is sufficient to protect the community, how then, submitted the appellant, could it be in the public interest to make the further order.
The respondent said I should review the matter, as I had with the s 65(7) submission, on the basis that her Honour would not have been concerned with refined wording, in the midst of an Ex tempore judgment. Rather I should approach her Honour’s words on an all-encompassing basis. I disagree, for two reasons: Firstly the wording used by her Honour simply does not allow for the global approach, and secondly, and more importantly, I agree with her Honour’s conclusion that 12 months’ disqualification is sufficient to protect the community. Her Honour was correct in that regard so that the further order must be seen as an error.
Turning now to the manifest excess of the 180 hours community service, it is necessary to look at the facts which gave rise to the orders. The 80 hours was for the breath test offence. The 100 hours was for the assault charge. Her Honour said:
In terms of objective seriousness, there is a statutory circumstance of aggravation in relation to the refusal to provide a sample of breath that you are deemed to be a repeat offender.
I note that it was the manner of your driving that caused you to come to police attention through a complaint by a member of the public although it appears that you were only driving a short distance and you had no passengers in the vehicle at the material time. The assault on the police officer is alcohol-fuelled violence.
It is aggravated by the fact that the police officer was in his place of employment, a place where he was entitled to feel safe. I note that the assault was constituted by a single punch to the chest. In all the circumstances, the offending taken as a course of conduct is at the mid-range of objective seriousness.
Had I been sentencing the appellant at first instance I do not think I would have imposed community service of 180 hours. I would have thought, for example, that 120 hours would have been appropriate. But the test is not what I would have thought, the test is whether the 180 hours is plainly unjust. I do not think I can conclude that it is. It is certainly at the upper end of the range but not out of the range.
In particular it is important for courts to emphasise that assaults on police officers in the execution of their duty are completely unacceptable. Her Honour said that a police officer was entitled to feel safe in his place of employment. I will take the matter a little further. A police officer in the place of his/her employment, which includes being out and about enforcing the law, must be able to do so without fearing an attack. No doubt every police officer will say that the possibility of being attacked is always prevalent when dealing with criminals, in particular those who have had too much to drink or on drugs.
The realistic attitude of officers however does not give any leeway to allow them to be assaulted.
I was informed that the appellant, despite the automatic stay, had already completed 112 hours of community service. There is apparently a danger that if I re-sentence her to 180 hours of community service, that she might have to re-do the already completed 112 hours. To avoid this possibility I will assign the remaining 68 hours to the assault offence.
The orders of the Court are:
1)The appeal is allowed.
2)The orders made by Magistrate Boss on 27 August 2020 are set aside.
3)The appellant is re-sentenced as follows:
(a)On the charge of refusing to provide a breath sample as directed by a police officer (CC20/5384), the appellant is convicted and disqualified from holding or obtaining a driver’s licence for 12 months. In addition the appellant is placed on a Good Behaviour Order for two years on the following conditions:
(i)She is subject to the supervision of corrective services for two years;
(ii)she attends such educational, vocational, psychological, psychiatric or other assessments, or programs or counselling as directed, particularly in relation to alcohol.
(b)On the charge of assault (CC20/5385) the appellant is placed on a Good Behaviour Order for two years on the following conditions:
(i)She is subject to the supervision of corrective services for two years or such lesser period as deemed appropriate by the director-general;
(ii)She is to complete 68 hours of community service within two years;
(iii)She attends such educational, vocational, psychological, psychiatric or other assessments, or programs or counselling as directed, particularly in relation to alcohol.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 17 December 2020 |
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Amendments
5 January 2021 Paragraph [1]: Replace “One’” with “On”
8 January 2021 Paragraph [12]: Replace “the offending taken as a course of conduct is that the mid-range of objective seriousness” with “the offending taken as a course of conduct is at the mid-range of objective seriousness”
15 January 2021 Paragraph [17](3)(b)(i): Add “or such lesser period as deemed appropriate by the director-general”
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