High v Willis

[2008] ACTSC 88

DAVID LESLIE HIGH v BENJAMIN WILLIS [2008] ACTSC 88
(26 September 2008)

CRIMINAL LAW – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals – failure by Magistrate to take account of relevant consideration.

CRIMINAL LAW – sentencing principles – Griffiths remand – impact of extended period of scrutiny by court.
CRIMINAL LAW – sentencing principles – delay in sentencing – whether to postpone sentencing using a statutory deferred sentence or a Griffiths remand – Crimes (Sentencing) Act 2005 (ACT).

CRIMINAL LAW – sentencing principles – splitting of sentencing for related offences – principle of totality.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19

Crimes Act 1900 (ACT), s 29(3)
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT)

Magistrates Court Act 1930 (ACT), s 214

Criminal Appeal Act 1912 (NSW), s 6

Lowndes v The Queen (1999) 195 CLR 665
Baxter v R [2007] NSWCCA 237 (10 August 2007)
House v The King (1936) 55 CLR 499
Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357
R v Griggs (1999) 167 ALR 673
Evans v Shiels [2004] ACTSC 19

Kennewell v Rand [2006] ACTCA 10 (5 June 2006)
Mill v R (1988) 166 CLR 59
Griffiths v R (1977) 137 CLR 293
R v Mohi Harris [2007] NSWCCA 130 (12 March 2007)
R v Daniella Branka Grabovac (1997) 92 A Crim R 258

R v Brianna Arioli [2008] ACTSC SCC 34/08 (unreported, 24 April 2008)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 66 of 2006

Judge:             Penfold J
Supreme Court of the ACT

Date:              26 September 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCA 66 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DAVID LESLIE HIGH

Appellant

AND:BENJAMIN WILLIS

Respondent

ORDER

Judge:  Penfold J
Date:  26 September 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is allowed.

1. The appellant be re-sentenced after further submissions.

Introduction

1. This is an appeal from a sentence of imprisonment and a disqualification from driving imposed in the Magistrates Court for an offence of being a special driver (in this case, a disqualified driver) with level 4 alcohol under subsection 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the alcohol offence).

Background

The circumstances of the offence

1. Early in the morning of 12 August 2006, the appellant, David Leslie High, was driving his vehicle along Northbourne Avenue.  He was stopped by police, who performed a screening test.  The result of the test was positive and the appellant was taken to City Police Station, where a breath analysis showed a blood alcohol reading of 0.202 grams of alcohol per 100 millilitres of blood.  At the time, the appellant was not a holder of a driver’s licence, having been, in the ACT Magistrates Court on 28 October 2002, disqualified from driving for at least five…