Dawson v Coles - [2012] ACTSC 147

DEAN DAWSON v STEPHEN COLES
[2012] ACTSC 147 (18 September 2012)

APPEAL AND NEW TRIAL – In general and right of appeal – Appeal from Magistrates Court – Sentencing appeal – Appeal upheld.
TRAFFIC LAW – Offences – Driving with the prescribed concentration of alcohol – Disqualification of licence as penalty – Discretion to alter default penalty – Specific error in exercise of discretion – Re-sentence.
STATUTES – Acts of parliament – Interpretation – Removal of limit of what is a “first offender” – Consequences for sentencing.

Crimes (Sentencing) Act 2005 (ACT), s 7
Magistrates Court Act 1930 (ACT), ss 214, 216, pt 3.10, div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4E, 15AA, 19(1), 33(3), 35
Road Transport (Driver Licensing) Act 1999 (ACT), s 31(1)
Road Transport (General) Act 1999 (ACT), s 61B
Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT)

Explanatory Statement, Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010
ACT, Parliamentary Debates, Legislative Assembly, 18 October 2010, 5235, Simon Corbell, Attorney-General

Barac v Thexton [2008] ACTSC 137
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Director of Public Prosecutions v Ottewell [1970] AC 642
Grooms v Toohey (2012) 258 FLR 261
Hugg v Driessen (2012) 60 MVR 288
Marakarian v The Queen (2005) 228 CLR 357
McCoy v Fenton [1960] Tas SR 149
R v Boyd [1975] VR 168
R v Piercey [1971] VR 647
Scott v Wynants (2009) 4 ACTLR 13
Shires v Edwards [2011] ACTSC 132
Travini v Starczewski (2009) 169 ACTR 1
Veen v The Queen (No 2) (1988) 164 CLR 465

No. SCA 107 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 18 September 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 107 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

DEAN DAWSON
Appellant

v
STEPHEN COLES
Respondent

ORDER

Judge:  Refshauge J
Date:  18 September 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld in part.

The order of the Magistrates Court made on 14 November 2011, that the period during which Dean Dawson is disqualified from holding or obtaining a driver licence be reduced to three years, be set aside.

The conviction and sentence of the Magistrates Court made on 14 November 2011 be otherwise confirmed.

The period during which Dean Dawson is disqualified from holding or obtaining a driver licence is reduced from five years to 20 months.

AND THE COURT DECLARES THAT:

Having regard to the period of licence suspension and disqualification already imposed on Dean Dawson, the period during which he is disqualified from holding or obtaining a driver licence end on 5 February 2014.

In the early hours of 19 February 2011, Dean Allan Dawson drove a motorcycle in the suburban streets of Dunlop, ACT, after a night of heavy drinking. He crashed the motorcycle in a collision with a pedestrian refuge island.

He was injured in the collision and taken to hospital where, no doubt, in accordance with s 15AA of the Road…

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 Dawson v Coles

Details

AGLC: DEAN DAWSON v STEPHEN COLES [2012] ACTSC 147 (18 September 2012)
Case: [2012] ACTSC 147
Decision Date: September 18, 2012

CaseChat Overview and Summary

The appeal in Dawson v Coles was heard before the Court of Appeal, where Dawson sought to appeal against a decision made by the Magistrates Court in relation to a charge of driving with a prescribed concentration of alcohol. Dawson's appeal focused on the sentence imposed, specifically the disqualification of his driver's licence. Dawson contended that the Magistrates Court had erred in its exercise of discretion when imposing the penalty of licence disqualification. The case required the Court of Appeal to determine whether the Magistrates Court had made a specific error in its discretion that warranted a re-sentencing of Dawson.

The central legal issue before the Court of Appeal was whether the Magistrates Court had erred in its exercise of discretion when imposing the penalty of licence disqualification on Dawson. The court needed to assess if there was a specific error in the application of the law or the facts that would justify altering the original sentence. Additionally, the court had to consider the legislative changes that removed the limit on what constitutes a "first offender" and the consequences of these changes for sentencing in such cases.

The Court of Appeal found that the Magistrates Court had indeed erred in its exercise of discretion when imposing the penalty of licence disqualification on Dawson. The court concluded that the specific error in the Magistrates Court's decision warranted a re-sentencing. The Court of Appeal also noted the legislative changes regarding the definition of a "first offender" and the impact these changes had on sentencing discretion in similar cases. As a result, the appeal was upheld in part, and the case was remitted back to the Magistrates Court for re-sentencing, taking into account the correct application of the law and the facts of the case.

Orders

Orders of the court

The appeal be upheld in part.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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