Dean James Loughton v Luke Daniel Smorhun - [2014] ACTSC 92

DEAN JAMES LOUGHTON v LUKE DANIEL SMORHUN
[2014] ACTSC 92 (12 May 2014)

APPEAL AND NEW TRIAL – Appeal from Magistrates Court – Appeal against sentence – Good, sufficient and appropriate reasons exist for the licence disqualification period to be reduced

Road Transport (Alcohol and Drugs Act 1977 (ACT), ss 4E, 19, 26, 35
Road Transport (General) Act 1999 (ACT), s 61B
Legislation Act 2001 (ACT), s 133
Magistrates Court Act 1930 (ACT), ss 209(1), 214, Pt 3.10, Div 3.10.2

Magistrates Court of the Australian Capital Territory, Practice Direction No 2 of 2007 “A” List Procedures

Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Doyle v Gillespie (2010) 4 ACTLR 188
Grooms v Toohey (2012) 7 ACTLR 1
Hugg v Driessen (2012) 261 FLR 324
Jeffers v The Queen (1993) 67 ALJR 288
Kenny v Ritter (2009) 52 MVR 360
Maher v Carpenter (2012) 7 ACTLR 216
Mayen v Ryan [2013] ACTSC 172
Newham v Cogle [2012] ACTSC 76
Scott v Wynants (2009) 4 ACTLR 13
Talukdar v Dunbar (2009) 194 A Crim R 545
Walker v Treloar [2013] ACTSC 100

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 25 of 2014

Judge: Refshauge J
Supreme Court of the ACT

Date: 12 May 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCA 24 of 2014
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DEAN JAMES LOUGHTON

Applicant

AND:LUKE DANIEL SMORHUN
Respondent

ORDER

Judge:  Refshauge J
Date:  12 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

The time within which Dean James Loughton may file a notice of appeal be extended to 16 May 2014.

The appeal be allowed.

The conviction of the offence of being a driver on a road with the prescribed concentration of alcohol be confirmed.

The fine imposed by the Magistrates Court on 14 November 2013 and the court costs, criminal injuries compensation levy and victims levy then imposed be confirmed.

The period during which Dean James Loughton be disqualified from holding or obtaining a driver licence be set aside and the period of twenty months be substituted.

AND THE COURT DECLARES THAT:

The date on which the disqualification of Dean James Loughton from holding or obtaining a driver licence expires, having regard to s 61B of the Road Transport (General) Act 1999 (ACT) and s 35 of the Road Transport (Alcohol and Drugs Act 1977 (ACT), is 21 May 2014.

On 21 September 2012, Dean James Loughton, was driving his motor vehicle when he was subject to what is known as “random breath testing”.

The initial screening test proved positive and Mr Loughton was placed in custody and…

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.

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Details

Case: [2014] ACTSC 92
Decision Date: 12 May 2014

CaseChat Overview and Summary

Dean James Loughton has appealed against the sentence handed down by the Magistrates Court, contesting the length of his driver's licence disqualification. The dispute revolves around the duration of his disqualification, which he believes to be excessive given the circumstances of the case. The Court of Appeal has been tasked with reviewing the sentence to determine if it is just, sufficient, and appropriate. The appeal hinges on whether the original sentence met the criteria for being a good, sufficient, and appropriate reason for the length of the disqualification.

The primary legal issue the court had to address was whether the original sentence was just and appropriate, particularly concerning the duration of the disqualification from holding or obtaining a driver's licence. The court considered whether the reasons given for the disqualification period were valid and whether a different period would be more suitable. The court also examined the principles of sentencing and the need to balance the public interest with the individual's rights.

The Court of Appeal found that the Magistrates Court had not provided sufficient reasons for the length of the disqualification period. It determined that the original sentence did not adequately reflect the principles of justice and proportionality. Consequently, the court decided that a reduced period of disqualification was appropriate. The appeal was allowed, and the conviction for driving with a prescribed concentration of alcohol was confirmed. However, the disqualification period was set aside and reduced to twenty months, in line with the court's reassessment of the circumstances.

Orders

Orders of the court

1. The time within which Dean James Loughton may file a notice of appeal be extended to 16 May 2014.

2. The appeal be allowed.

3. The conviction of the offence of being a driver on a road with the prescribed concentration of alcohol be confirmed.

4. The fine imposed by the Magistrates Court on 14 November 2013 and the court costs, criminal injuries compensation levy and victims levy then imposed be confirmed.

5. The period during which Dean James Loughton be disqualified from holding or obtaining a driver licence be set aside and the period of twenty months be substituted.

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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