SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Irving v Head |
Citation: | [2016] ACTSC 37 |
Hearing Date: | 26 February 2016 |
DecisionDate: | 23 March 2016 |
Before: | Refshauge J |
Decision: | 1. The appeal is upheld. 2. The convictions of Melissa Irving of driving with the prescribed concentration of alcohol and failing to stop at a red light are confirmed. 3. The sentences are set aside. 4. For driving with the prescribed concentration of alcohol, Melissa Irving is fined $750. 5. For failing to stop at a red light, Melissa Irving is fined $350. 6. Melissa Irving pay court costs of $75, a criminal injuries compensation levy of $50 and a victim’s service levy of $30. 7. Melissa Irving pay the fines, costs and levies within one month from today. 8. The period of disqualification be reduced to 2 years, less the 89 days during which she did not drive. 9. It be declared that the period of licence disqualification, taking into account the period under s 35 of the Road Transport (Alcohol and Drugs) Act 1999 (ACT) begin today, 23 March 2016 and end on 25 September 2017, when Melissa Irving is entitled to obtain or hold a driver licence. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against conviction – appeal against sentence – licence disqualification – allowance for guilty plea – double punishment – totality – use offence as aggravating feature of another offence CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – re-sentence – driving with prescribed concentration of alcohol in breath – failing to stop at stop line at red light – reduction of default disqualification |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 33(1)(a), 33(1)(c), 33(1)(p), 35 Crimes (Sentencing Procedures) Act 1999 (NSW), ss 21A, 54A Australian Road Rules, r 56(1)(a) |
Cases Cited: | 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 Barbaro v The Queen (2014) 253 CLR 58 |
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- AGLC
- Irving v Head [2016] ACTSC 37
- Case
- [2016] ACTSC 37
- Decision Date
CaseChat Overview and Summary
The court considered the appeal on its merits, focusing on the fairness and proportionality of the sentence. It was noted that the magistrate had not provided any reasons for the sentence, and there was no evidence that the court had considered the totality principle. The court held that the sentence was manifestly excessive and unjust, and that the licence disqualification period was not justified. The court also found that the magistrate had erred in using the driving offence as an aggravating feature of the other offence.
The appeal was allowed, and the convictions were confirmed. The sentences were set aside, and new sentences were imposed. Irving was fined $750 for driving with the prescribed concentration of alcohol and $350 for failing to stop at a red light. Additionally, she was ordered to pay court costs, a criminal injuries compensation levy, and a victim’s service levy. The licence disqualification period was reduced to two years, less the 89 days during which Irving did not drive. It was declared that the licence disqualification period would begin on 23 March 2016 and end on 25 September 2017.
Orders
Orders of the court
1. The appeal is upheld.
2. The convictions of Melissa Irving of driving with the prescribed concentration of alcohol and failing to stop at a red light are confirmed.
3. The sentences are set aside.
4. For driving with the prescribed concentration of alcohol, Melissa Irving is fined $750.
5. For failing to stop at a red light, Melissa Irving is fined $350.
6. Melissa Irving pay court costs of $75, a criminal injuries compensation levy of $50 and a victim’s service levy of $30.
7. Melissa Irving pay the fines, costs and levies within one month from today.
8. The period of disqualification be reduced to 2 years, less the 89 days during which she did not drive.
9. It be declared that the period of licence disqualification, taking into account the period under s 35 of the Road Transport (Alcohol and Drugs) Act 1999 (ACT) begin today, 23 March 2016 and end on 25 September 2017, when Melissa Irving is entitled to obtain or hold a driver licence.
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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