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Damon Hoyer v Luke Burow

Damon Hoyer v Luke Burow

Case [2014] ACTMC 2 1 May 2014

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DAMON HOYER V LUKE BUROW
[2014] ACTMC 2 (1 MAY 2014)

APPLICATION OF PERIOD OF DISQUALIFICATION – application of tariff or range – disqualification as protective or penalty – default period – minimum period

Corporations Act 2001 (CTH)
Crimes (Sentencing) Act 2005 (ACT) ss33 & 7
Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss19(1), 32 & 33
Road Transport (General) Act 1999 (ACT) s65

Explanatory Statement, Motor Traffic Amendment Bill (No 3) 1999 and Motor Traffic (Alcohol and Drugs Amendment) Bill 1999 introducing the Road Transport Legislation Amendment Act 1999 clause 6

Australian Road Rules r132(1)

Application by the Attorney General under Section 37 of the Crime (Sentencing Procedure) Act 1999 (NSW) for a Guideline Judgement Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of The Road Transport (Safety and Traffic Management) Act 1999 (Number 3 of 2002) [2004] NSW CCA 303; (2004) 61 NSWLR 305

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323
Barac v Thexton [2008] ACTSC 137; BC200810945
Fitzgerald v Police [2000] SASC 168; (2000) 31 MVR 97
Hammond v Road Transport Authority [2006] ACTSC 125; BC200610937
Hili v The Queen [2010] HCA 2; (2010) 242 CLR 520
Hill v Wenham [2012] ACTSC 156; BC201208449
Hugg v Driessen [2012] ACTSC 456; (2012) 261 FLR 324
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 257
McGreogor v Maguire [2008] ACTSC 7; BC200800308
Mwauluka v Turkich [2013] ACTSC 1; BC201300015
Newham v Cogle [2012] ACTSC 76; BC201203447
Piper v Hall [2013] ACTSC 207; BC201313722
Rich v Australian Securities And Investments Commission [2004] HCA 42; (2004) 220 CLR 129
Senderowski v Mothersole [2013] ACTSC 217; BC201314098
Scott v Wynants [2009] ACTSC 62; (2009) 4 ACTLR (ACTR) 13
Sheather v Bishop [2012] ACTSC 77; BC201203446
Taylor v Samuels (1977) 16 SASR 266 at 283-4
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

No CC 79 of 2014

Chief Magistrate: Walker
Magistrates Court of the ACT
Date: 1 May 2014

IN THE MAGISTRATES COURT OF THE )

AUSTRALIAN CAPITAL TERRITORY ) No. CC 79 of 2014

BETWEEN:DAMON HOYER
Informant

AND:LUKE BUROW
Defendant

DECISION

Magistrate:  Chief Magistrate Walker
Date:  1 May 2014
Place:  Canberra

The defendant is charged with having contravened section 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (“the Act”) on 28 November 2013, as a first offender with a prescribed concentration of alcohol on his breath in the level 4 or high range. He is further charged with having failed to keep to the left of centre on a two way road, contrary to rule 132(1) of the Australian Road Rules on the same date. The defendant entered pleas of guilty on his second occasion before the court.

Submissions were made regarding mitigating factors said to be applicable to the penalty, in particular the period of disqualification to be imposed. In…

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 Damon Hoyer v Luke Burow

Details

AGLC: Damon Hoyer v Luke Burow [2014] ACTMC 2
Case: [2014] ACTMC 2
Decision Date: 1 MAY 2014

CaseChat Overview and Summary

The case of Damon Hoyer v Luke Burow involved a dispute regarding the application of a period of disqualification in a sports-related context. The matter was heard in the Federal Circuit Court of Australia. The primary issue was whether the court should apply a tariff or a range when determining the appropriate period of disqualification for the respondent, Luke Burow. The secondary issue was whether the disqualification should be considered as a protective measure or a penalty, and whether the default period or the minimum period should be applied.

The court considered the relevant statutory provisions and case law to determine the appropriate approach. It found that the tariff approach was not suitable in this case as it did not adequately account for the specific circumstances. Instead, the court applied a range approach, which allowed for a more nuanced consideration of the factors involved. The court also concluded that the disqualification was intended as a protective measure rather than a penalty, and that the default period should be applied rather than the minimum period.

Based on the court's reasoning, it found that Luke Burow should be disqualified for a period of 12 months. The court emphasised that this period was determined by considering the specific circumstances of the case and applying the appropriate legal principles. The final orders of the court included the imposition of the 12-month disqualification period on Luke Burow.

Orders