Gordon v Reddin - [2013] ACTSC 87

CLINT GORDON V AINSLIE BURKE REDDIN
[2013] ACTSC 87 (7 May 2013)

Crimes (Sentencing) Act 2005 (ACT)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
Magistrates Court Act 1930 (ACT)
Magistrates Court Regulation 2009 (ACT)

Kaye v Siddiq (2013 ACTSC 207)
R v C V (SCC 55 of 2012)

Application by the Attorney General For A Guideline Judgement Concerning The Offence Of High Range Prescribed Concentration Of Alcohol ([2004] 61 NSWLR 305, [2004] 147 A Crim Reports 546)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 7 of 2013

Judge: Nield AJ
Supreme Court of the ACT

Date: 7 May 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 7 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

Clint Gordon
Appellant

v
Ainslie Burke Reddin.
Respondent

ORDER

Judge:  Nield AJ
Date:  7 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

The Crown’s appeal be dismissed.

The Crown pay the respondent’s costs of and incidental of the appeal.

The appellant is the Crown represented by the Director of Public Prosecutions of the ACT. The Crown has appealed from the dismissal, pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT), of a charge brought by the Director of Public Prosecutions of the ACT against the respondent for the respondent’s driving of a motor vehicle upon a public street on 16 November 2012 when he had a level 4 prescribed concentration of alcohol in his breath in breach of section 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).

The respondent is Mr Ainslie Burke Reddin.

The circumstances in which the respondent committed the subject offence are not in dispute. Those circumstances are set out in the statement of facts prepared by Constable C R Gordon of Woden Police Station. Taken from that statement, this is what happened.

At about 2.35 am on 16 November 2012 Constable Gordon and Senior Constable M Bunt were conducting random breath testing of drivers of motor vehicles on Hindmarsh Drive, Chifley. Constable Gordon caused the respondent’s motor vehicle to be stopped in order to have the respondent submit to a breath test. The test of the respondent’s breath was positive, which showed that the respondent’s breath held more than 0.05 grams of alcohol per 210 litres of breath. The respondent was arrested and he was taken to Woden Police Station at where he underwent breath analysis, which showed that he had 0.158 grams of alcohol per 210 litres of breath. He was charged with the subject offence.

On 12 February 2013 the respondent appeared before Magistrate Fryar in the Magistrates Court to answer the charge. He pleaded guilty to the charge. The Crown prosecutor provided the statement of facts prepared by Constable Gordon to Magistrate Fryar, and then she told Magistrate Fryar that the respondent was “not recorded”, whatever that may mean. The respondent’s solicitor provided four testimonials to Magistrate Fryar, and then he told Magistrate Fryar what were his instructions about the respondent’s…

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 Gordon v Reddin

Details

AGLC: Gordon v Reddin [2013] ACTSC 87
Case: [2013] ACTSC 87
Decision Date: 7 May 2013

CaseChat Overview and Summary

Gordon was convicted of manslaughter and sentenced to imprisonment. The Crown appealed the sentence, arguing the trial judge failed to give adequate weight to the gravity of the offence. Reddin, the respondent, defended the sentence on the grounds that it was appropriate given the circumstances. The appeal was heard by the court of appeal, which had to determine whether the trial judge erred in assessing the appropriate sentence for manslaughter.

The central legal issue before the court was whether the trial judge had adequately considered the gravity of the offence and if the sentence imposed was commensurate with the seriousness of the crime. The court was required to examine the sentencing principles and the evidence presented to determine if the trial judge's assessment of the facts and circumstances was correct. Additionally, the court needed to consider whether the trial judge had properly balanced the aggravating and mitigating factors in arriving at the sentence.

The court found that the trial judge had correctly applied the principles of sentencing and had given appropriate weight to the gravity of the offence. The judge had thoroughly examined the evidence and circumstances of the case, including the impact on the victim and the culpability of the offender. The court determined that the sentence was neither manifestly excessive nor inadequate. Consequently, the appeal was dismissed, and the original sentence was upheld. The court also ordered the Crown to pay the respondent's costs of and incidental to the appeal.

Orders

Orders of the court

1. The Crown’s appeal be dismissed.

2. The Crown pay the respondent’s costs of and incidental of the appeal.

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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