Jean Moana McVeigh v Ben Johnston

[2013] ACTSC 135

JEAN MOANA MCVEIGH v BEN JOHNSTON
 [2013] ACTSC 135 (4 July 2013)

Australian Road Rules, s 203(1)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 86 of 2012

Judge: Burns J             
Supreme Court of the ACT

Date: 4 July 2013       

IN THE SUPREME COURT OF THE     )
  )          No. SCA 86 of 2012
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:  JEAN MOANA MCVEIGH
Appellant

AND:  BEN JOHNSTON

Respondent

ORDER

Judge:Burns J

Date:4 July 2013

Place:Canberra

THE COURT ORDERS THAT: 

1. The Appeal be dismissed. 

2. The orders made by the Magistrate will be varied such that the appellant has one month from 4 July 2013 in which to pay the fine.

1. This is an appeal from a sentence imposed by a Magistrate in the ACT Magistrates Court on 25 September 2012.  On that date, the appellant entered a plea of guilty to a charge under the Australian Road Rules of stopping a vehicle in a parking area for the disabled when she was not entitled to do so (s 203(1)). 

2. The appellant agrees that she parked in the disabled parking area and she agrees that at that time, the vehicle that she was driving did not have the appropriate sticker entitling her to park that vehicle in the disabled parking area.

3. When the matter came before me on 12 April this year, I adjourned the matter until today for hearing and I directed that the appellant provide a copy of any further evidence that she wanted to put before the court 14 days before today’s date and that she provide that to the office of the Director of Public Prosecutions.  The reason I did so, from my present recollection, was that the appellant raised on 12 April the proposition that she was, in fact, a person who was disabled and that she had been unaware that she needed a disabled parking sticker in order to park in the disabled zone.

4. I adjourned the matter today and gave the directions that I gave in order to allow the appellant to put evidence before the Court to corroborate her assertion that she was a person who would be, or would have at that time been, entitled to obtain a disability parking sticker if she had known that such was required.  No further evidence has been put before the court in that regard.

5. The error which Ms McVeigh apparently made, and as she has expressed in this court and also to the Magistrate, was an error of law.  She did not understand that she needed a disabled parking sticker in order to be able to park in that area.  I will therefore determine the appeal based upon the evidence that was put before the Magistrate.

6. In sentencing the appellant, the Magistrate was engaging in a discretionary function.  That is, he was exercising a discretion as to what was the appropriate penalty with respect to that particular offence, bearing in mind the circumstances of the offence and the offender.  I am only to interfere with the exercise of such a discretion where error is demonstrated.

7. I have read the transcript of the proceedings before the Magistrate and it does not appear to me that error has been demonstrated nor can it be said that the penalty imposed by the Magistrate was manifestly excessive.  The Magistrate convicted the appellant and fined her $214 which, as I understand it, was the parking infringement amount which appeared on the parking infringement notice.

8. The Magistrate was somewhat lenient in that he did not require the appellant to pay the costs of the proceedings in the Magistrates Court.  It could not be suggested that the sentence imposed by the Magistrate was manifestly excessive.  As such, the appeal will be dismissed. 

9. Whilst the appeal is dismissed, the orders made by the Magistrate will be varied such that the appellant has one month from today in which to pay.

   I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:    17 July 2013

Counsel for the Appellant:  The Appellant appeared in person
Counsel for the Respondent:  Ms M Hunter
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of Hearing:  4 July 2013
Date of Judgment:  4 July 2013