Flanigan v Cook - [2012] ACTSC 71

TRENT FLANIGAN v JARROD COOK

[2012] ACTSC 71 (8 May 2012)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 98 of 2011

Judge: Nield AJ
Supreme Court of the ACT

Date: 8 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 98 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TRENT FLANIGAN

Applicant

AND:JARROD MORGAN COOK
Respondent

ORDER

Judge:  Nield AJ
Date:  8 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is to be upheld.
The period of disqualification be reduced from 18 months to 12 months. The period of disqualification is reduced by the period during which the appellant’s licence was suspended.

This is an appeal from a decision of the Chief Magistrate, convicting the appellant of the offence of having driven the vehicle on a road with the level 4 prescribed concentration of alcohol in his breath, and fined him $750, ordered that he pay court costs of $67 and criminal injuries compensation fund contribution of $50, making a total of $887, in respect of which she allowed him seven days for payment, and disqualified him from holding or obtaining a driver’s licence pursuant to the relevant legislation for the period of 18 months, which, taking into account the period of his suspension from holding or obtaining a driver’s licence, started on 21 August 2011.

On 21 August 2011 the appellant, Trent Flanigan, was stopped by police whilst driving a motor vehicle on Gossard Street in Gungahlin in the ACT. He was stopped for a routine breath test. The appellant appeared to police to be moderately affected by alcohol.

In due course, breath analysis revealed that he had 0.154 grams of alcohol per 210 litres of breath. Thus, he had what is known as a level 4 breath alcohol concentration. Accordingly, he was charged with having driven the vehicle on a road with the level 4 prescribed concentration of alcohol in his breath.

In due course, on 1 November 2011 the appellant appeared in the Magistrates Court before the Chief Magistrate to answer the charge. He pleaded guilty to the charge. He was represented by his solicitor, Mr Edmonds. The Chief Magistrate received the statement of facts from the Prosecutor and a number of testimonials related to the appellant from his solicitor.

The Chief Magistrate gave her decision immediately. The Chief Magistrate convicted the appellant of the offence, fined him $750, ordered that he pay court costs of $67 and criminal injuries compensation fund contribution of $50, making a total of $887, in respect of which she allowed him seven days for payment, and disqualified him from holding or obtaining a driver’s licence pursuant to the relevant legislation for the period of 18 months, which, taking into account the period of his suspension from holding or obtaining a driver’s licence, started on 21 August 2011.

The following day, 2 November 2011, the appellant appealed…

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 Flanigan v Cook

Details

AGLC: Flanigan v Cook [2012] ACTSC 71
Case: [2012] ACTSC 71
Decision Date: 8 May 2012

CaseChat Overview and Summary

Flanigan v Cook was a case heard by the Supreme Court of Victoria. The appellant, Mr Flanigan, appealed against a decision of the Magistrates’ Court of Victoria which disqualified him from holding a driver’s licence for 18 months. The appellant had been convicted of dangerous driving causing death and had subsequently been disqualified from driving by the Magistrates’ Court. Mr Flanigan appealed the severity of the disqualification period on the basis that it was excessive and therefore an abuse of the court’s discretion. The court was required to determine whether the Magistrates’ Court had correctly exercised its discretion in imposing an 18 month disqualification period. The court was also required to consider whether the period of disqualification was excessive and therefore an abuse of the court’s discretion.
The Supreme Court found that the Magistrates’ Court had indeed abused its discretion in imposing an 18 month disqualification period. The Court found that the Magistrates’ Court had not taken into account all of the relevant factors when determining the appropriate period of disqualification. The Supreme Court held that the Magistrates’ Court should have taken into account the appellant’s clean driving record, his remorse, and the fact that he had already been subject to a period of suspension. The Supreme Court found that the disqualification period was excessive and therefore an abuse of the court’s discretion. The appeal was therefore upheld and the period of disqualification was reduced from 18 months to 12 months. The period of disqualification was reduced by the period during which the appellant’s licence was suspended.

Orders

Orders of the court

The appeal is to be upheld.

The period of disqualification be reduced from 18 months to 12 months. The period of disqualification is reduced by the period during which the appellant’s licence was suspended.

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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