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Kennedy v Egan

Kennedy v Egan

Case [2011] ACTSC 163 30 September 2011

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STEVEN ROBERT KENNEDY v PATRICK JULIAN EGAN
[2011] ACTSC 163 (30 September 2011)

TRAFFIC LAW – offences – driving with more than the prescribed concentration of alcohol – sentencing – whether manifestly excessive – held to be manifestly excessive – appellant re-sentenced.

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – sentencing – whether manifestly excessive – principles for deciding that ground – held to be manifestly excessive – appellant re-sentenced.

CRIMINAL LAW – jurisdiction, practice and procedure – whether indication of penalty requires explanation when more severe penalty imposed.

Crimes (Sentence Administration) Act 2005 (ACT)
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4D, 4E, 19
Legislation Act 2001 (ACT), s 133
Magistrates Court Act 1930 (ACT), ss 214, 216, Pt 3.10, Div 3.10.2
Crimes (Sentencing) Act 2005 (ACT), ss 13, 17, 35, Pt 3.2
Road Transport (Driver Licensing) Regulation 2000 (ACT), s 48, Div 3.7
Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 8A, 9
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
Spent Convictions Act 2000 (ACT)

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Barac v Thexton [2008] ACTSC 137
Shero v Hinton [2010] ACTSC 73
Hawkins v Hawkins (2009) 3 ACTLR 210
R v Campbell [2010] ACTCA 20
R v Eisenach [2011] ACTCA 2
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
Scott v Wynants (2009) 4 ACTLR 13
Markarian v The Queen (2005) 228 CLR 357
R v Jurisic (1998) 45 NSWLR 209
R v Henry (1999) 46 NSWLR 346
Wong v The Queen (2001) 207 CLR 584
R v Whyte (2002) 55 NSWLR 252
Bidlake v Police [2010] SASC 34
Kroezen v Healey [2008] ACTSC 25
Wade v Wynants [2008] ACTSC 6
Hammond v Road Transport Authority [2006] ACTSC 125
Griffiths v The Queen (1977) 137 CLR 293
Tindall & Gunton (1994) 74 A Crim R 275
R v JCE (2000) 120 A Crim R 18
McDonald v Nilsson (2009) 54 MVR 32
AB v The Queen (1999) 198 CLR 111

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 48 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 30 September 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 48 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

STEVEN ROBERT KENNEDY
Appellant

v
PATRICK JULIAN EGAN
Respondent

ORDER

Judge:  Refshauge J
Date:  30 September 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

The conviction entered by the Magistrates Court be confirmed.

The sentence imposed by the Magistrates Court be set aside.

In lieu, Mr Kennedy be sentenced as follows:

(i) he be fined $1,000.00;

(ii) he be ordered…

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 Kennedy v Egan

Details

AGLC: Kennedy v Egan [2011] ACTSC 163
Case: [2011] ACTSC 163
Decision Date

CaseChat Overview and Summary

Kennedy v Egan involved an appeal against a sentence imposed by the Magistrates Court of the Australian Capital Territory. Steven Robert Kennedy, the appellant, was convicted of driving with a high concentration of alcohol in his blood, specifically 0.231 grams of alcohol in 100 millilitres of blood, which was well above the legal limit. The offence occurred on 28 February 2009, and Kennedy was sentenced by the Learned Chief Magistrate to four months’ imprisonment, suspended immediately, a Good Behaviour Order for two years, and a disqualification from holding a driver’s licence for nine months. Kennedy appealed against the sentence on the ground that it was manifestly excessive.

The legal issues in the case centred around whether the sentence was manifestly excessive and whether the Learned Chief Magistrate failed to accord procedural fairness by not giving Kennedy an opportunity to make submissions on the more severe penalty and in not providing reasons for the order of imprisonment. The court had to determine if the sentence imposed by the Magistrates Court was appropriate and whether there were any specific errors in the exercise of the sentencing discretion.

The court concluded that the sentence imposed by the Magistrates Court was manifestly excessive. While the offence was serious, the court considered various factors such as Kennedy’s high blood alcohol concentration, his previous conviction (though it was over ten years prior and now a spent conviction), his guilty plea, his remorse, and his efforts to abstain from alcohol. The court found that a substantial fine, greater than that imposed by the Learned Chief Magistrate, with a Good Behaviour Order would be adequate. The court also decided that a total prohibition on the consumption of alcohol for the period of the restricted licence was severe but not beyond range, and the condition to extend that beyond the period of the restricted licence was unwarranted.

The court ordered that the appeal be allowed, the conviction entered by the Magistrates Court be confirmed, and the sentence imposed by the Magistrates Court be set aside. In lieu, Kennedy was sentenced to a fine of $1,000.00, ordered to pay court costs of $63.00 and a Criminal Injuries Compensation and Victims Levy of $60.00, required to sign an undertaking to comply with the Offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months, and his period of disqualification from holding or obtaining a licence be reduced to eight months and three days from the date of the judgment.

Orders