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Ian Ross v Lara WILLIAMS

Ian Ross v Lara WILLIAMS

Case [2012] ACTSC 168 5 November 2012

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IAN ROSS v LARA WILLIAMS
[2012] ACTSC 168 (5 November 2012)

APPEAL AND NEW TRIAL – appeal from Magistrates Court – appeal against sentence – disqualification of licence – appeal upheld.
TRAFFIC LAW – offences – driving with the prescribed concentration of alcohol – period of disqualification – relevance of extension of meaning of “repeat offender” – manifestly excessive.
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentencing – not a mathematical approach – need for instructive synthesis – setting proper period for licence disqualification.

Crimes (Sentencing) Act 2005 (ACT), ss 35-37
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4F, 19(1), 26, 33

Road Transport (Driver Licensing) Regulation 2000 (ACT), Div 3.7

Barac v Thexton [2008] ACTSC 137
Boeyen (1990) 50 A Crim R 482
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Ellis (1993) 68 A Crim R 449
Goundar v Goddard (2010) 240 FLR 176
House v The King (1936) 55 CLR 499
Morris v East (1988) 83 ACTR 1
R v North [1971] RTR 366
R v Thomson (2000) 49 NSWLR 383
Scott v Wynants (2009) 4 ACTLR 13
Sheather v Bishop [2012] ACTSC 77
Shires v Edwards [2011] ACTSC 132
The Queen v TW (2011) 6 ACTLR 18
Wong v The Queen (2001) 207 CLR 584

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 62 of 2011

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 5 November 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 62 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

IAN ROSS
Appellant

v

LARA WILLIAMS
Respondent

ORDER

Judge:  Refshauge ACJ
Date:  14 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is upheld in part.

The contribution in the fine, order for costs and criminal injuries compensation levy be confirmed.

The order giving time to pay the fine, costs and criminal injuries compensation levy be set aside.

The disqualification of Mr Ross from holding or obtaining a driver’s licence is set aside.

In lieu, the fine be paid on or before 14 August 2012.

The automatic disqualification be reduced to seven months from the date of conviction, subject to the interruption as a result of s 216 of the Magistrates Court Act 1930 (ACT).

AND THE COURT DECLARES THAT:

To take into account the days of the disqualification prior to the filing of the notice of appeal, the disqualification will end on 5 September 2012.

Drink-driving has become a constant problem for the community with the effect it has in contributing to road traffic accidents and therefore to problems for those whose lives, well-being and property are affected.

One of the means of responding to the problem is to remove from drivers who do not obey the prohibition against drink-driving the privilege of holding or obtaining a driver licence. This can have serious consequences in itself,…

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 Ian Ross v Lara WILLIAMS

Details

AGLC: Ian Ross v Lara WILLIAMS [2012] ACTSC 168
Case: [2012] ACTSC 168
Decision Date: 5 November 2012

CaseChat Overview and Summary

In the case of Ian Ross versus Lara Williams, the appellant, Ian Ross, sought to appeal a decision made by the Magistrates Court regarding his sentence, particularly the disqualification period imposed on his driver's licence following a conviction for driving with a prescribed concentration of alcohol. The primary issue before the court was whether the period of disqualification imposed on the appellant's licence was manifestly excessive, warranting an adjustment by the appeals court.

The court was required to determine the appropriateness of the disqualification period in the context of traffic law, specifically under the criteria for what constitutes a 'repeat offender' and the relevance of such a designation to the duration of licence disqualification. Additionally, the court had to consider the principles of criminal law concerning sentencing and the appropriate methodology for determining the period of disqualification. It was noted that sentencing is not a purely mathematical exercise but rather an instructive synthesis that must be proportionate to the offence.

Upon reviewing the case, the court found that the disqualification period imposed was indeed manifestly excessive. The court held that the disqualification period should be reconsidered to ensure it aligns with the principles of fairness and proportionality. The appeal was partially upheld, and the matter was remitted to the Magistrates Court for a reassessment of the appropriate disqualification period. The court emphasized that the setting of such periods must be carefully balanced and not disproportionately punitive, taking into account the individual circumstances of the offender and the need to deter future offending while also considering the impact on the individual's livelihood and personal circumstances.

Orders

Orders of the court

The appeal is upheld in part.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Ian Ross v Lara WILLIAMS [2012] ACTSC 168

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 16 of 16 shown

R v Holder
[2019] SASCFC 73

…rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen [(2000) 202 CLR 321], must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must als…
Sheather v Bishop
[2012] ACTSC 77 Para 1

…cern that a growing number of appeals to this Court challenge that element of the sentence and that element only. See, for example, Sheather v Bishop [2012] ACTSC 77 at [37]. The UK courts have recognised this: in R v North [1971] RTR 366 at 368, the Court of Appeal referred to the need to recognise that “driving…
Shires v Edwards
[2011] ACTSC 132 Para 1

…distress that his family situation had obviously caused him. In particular, Mr Sabharwal noted that, contrary to what I had said in Shires v Edwards [2011] ACTSC 132 at [82], her Honour did not seem to have taken into account the employment consequences of the loss of a driver licence to Mr Ross.…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles to be applied. I apply them in this case.…
Goundar v Goddard
[2010] ACTSC 56 Para 1

…relevant. It was, however, not merely an absence of convictions, but what has been called positive good character as I explained in Goundar v Goddard (2010) 240 FLR 176 at 184; [45]–[47].…
R v Thorn
[2010] ACTCA 10 Para 33

…See also R v Thorn [2010] ACTCA 10 (at [33]). 33.As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461): What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particu…
Hawkins v Hawkins
[2009] ACTSC 148 Para 32

…summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]–[35]): 32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]): 46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy…
Scott v Wynants
[2009] ACTSC 62 Para 1

…judges”. In such offences as this, some efforts have been made to assist the Court, though not always with particular success. See, for example, Scott v Wynants (2009) 4 ACTLR 13 at 16; [14], though the work there provided to the Court took quite some effort. See also Morris v East (1988) 83 ACTR 1 at 6. On the other ha…
The Queen v Morse
[2009] NZCA 51

…34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily…
Barac v Thexton
[2008] ACTSC 137 Para 1

…I explained in Barac v Thexton [2008] ACTSC 137, after an examination of the authorities, that disqualification of a person from holding or obtaining a driver licence is, therefore, an important tool in a court’s armoury when exercising its function to protect the community and ensure obedience to the prohibition f…
Rama v The Queen
[2006] ACTCA 25

…an be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this…
Wong v The Queen
[2001] HCA 64

…) 49 NSWLR 383 Scott v Wynants (2009) 4 ACTLR 13 Sheather v Bishop [2012] ACTSC 77 Shires v Edwards [2011] ACTSC 132 The Queen v TW (2011) 6 ACTLR 18 Wong v The Queen (2001) 207 CLR 584…
Dinsdale v The Queen
[2000] HCA 54

…essive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen [(2000) 202 CLR 321], must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47.Counsel is, therefore, obliged not merely to assert the…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 1

…percentage discounts for pleas of guilty in this jurisdiction. That is clearly influenced by the NSW sentencing regime which requires it: R v Thomson (2000) 49 NSWLR 383 at 419; [160]. The discount when a reduction on a term of imprisonment is given for a plea is required to be stated in this Territory under ss 35-37…
House v R
[1936] HCA 40 Para 1

…account, rending the penalty manifestly excessive. It is, also, an error in the failure to have regard to a relevant consideration: House v The King (1936) 55 CLR 499 at 505.…
House v The King
63 WN 176 Para 1

…ing taken it into account, rending the penalty manifestly excessive. It is, also, an error in the failure to have regard to a relevant consideration: House v The King (1936) 55 CLR 499 at 505.…

Legislation cited in this decision · 3

Road Transport (Alcohol and Drugs) Act 1977 (ACT)
19(1), 26, 33, 4F 5 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
35 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
216 2 mentions (from Para 1)