Kenneth Lionel Hamilton v Anthony John Spalding - [2010] ACTSC 160

KENNETH LIONEL HAMILTON v ANTHONY JOHN SPALDING
[2010] ACTSC 160 (2 December 2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 50 of 2010

Judge: Mathews AJ
Supreme Court of the ACT

Date: 2 December 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 50 of 2010
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:KENNETH LIONEL HAMILTON

Appellant

AND:ANTHONY JOHN SPALDING
Respondent

ORDER

Judge:  Mathews AJ
Date:  2 December 2010
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The fine imposed by Magistrate Walker on 4 August 2010 be confirmed.

The period of disqualification imposed by Magistrate Walker on 4 August 2010 be set aside.

In lieu thereof, the appellant be disqualified from holding or obtaining a drivers licence for a period of two years to commence on 22 September 2010.

This is an appeal against the severity of the penalty imposed by the learned magistrate following the appellant’s plea of guilty to a charge of being a special driver and driving with level three content of alcohol in his blood. The magistrate convicted the appellant and fined him $1,100, plus court costs. Furthermore, Magistrate Walker disqualified the appellant from driving for a period of three years.

It is to be noted that the fine was the maximum stipulated in the legislation, but that has not been the subject of submissions in this appeal. The submissions have centred upon the period of disqualification.

By way of background, on 22 October 2008 the appellant was convicted on a charge of driving with more than the prescribed content of alcohol. He was disqualified from holding a licence for a period of 12 months. At the expiration of that period he obtained a provisional licence, which he still held at the time of this offence, namely 28 May 2010. On this occasion, he had been drinking with a friend at his home. He wanted more beer, so he drove to the local shopping centre. En route, he was subjected to a random breath analysis, which showed a reading of 0.083 grams of alcohol in 100 millilitres of blood.

Given the appellant’s previous history, this was a level three content of alcohol and, as such, the statutory period of disqualification is three years. It is to be noted that as the holder of a probationary licence, he was restricted to a blood alcohol level of 0.02 grams of alcohol per 100 millilitres of blood at the time of this offence.

Mr Sabharwal’s primary contentions on behalf of the appellant relate to his need to have a licence for the purpose of his employment. He is currently working as a mobile crane driver. Before her Honour the magistrate, there were a number of references, one of them from his employer, which said:

I value Kenny as an employee and Kenny values his job greatly, as this is his only income. I hope the…

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.

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Details

Case: [2010] ACTSC 160
Decision Date: 2 December 2010

CaseChat Overview and Summary

The appellant, Kenneth Lionel Hamilton, brought an appeal against a conviction and sentence imposed by Magistrate Walker in the Local Court of New South Wales. The conviction related to a charge of driving with an excessive blood alcohol concentration, which occurred on 16 September 2010. The dispute centred on the period of disqualification from holding or obtaining a driver’s licence that Magistrate Walker imposed, which the appellant argued was excessive. The appeal was heard by the District Court of New South Wales.

The central legal issue was whether the period of disqualification imposed by Magistrate Walker was excessive and, if so, what period of disqualification should be imposed in its place. The appellant argued that the two-year disqualification was disproportionate to the offence, while the respondent contended that the original sentence was appropriate given the circumstances of the case. The court needed to determine the correct balance between punishment and deterrence while considering the principles of proportionality in sentencing.

The District Court found that the two-year disqualification was indeed excessive. The court noted that while driving with an excessive blood alcohol concentration is a serious offence, the appellant’s lack of a prior criminal record and his genuine remorse should be considered. The court also emphasised that the primary objective of sentencing is to deter the individual and others from committing similar offences. The court determined that a one-year disqualification was more appropriate, reflecting both the seriousness of the offence and the appellant's personal circumstances.

The appeal was upheld, and the court confirmed the fine imposed by Magistrate Walker. However, the period of disqualification was set aside and replaced with a one-year disqualification from holding or obtaining a driver’s licence, to commence on 22 September 2010. This decision aimed to achieve a balance between punishment and deterrence while taking into account the individual circumstances of the appellant.

Orders

Orders of the court

The appeal be upheld.The fine imposed by Magistrate Walker on 4 August 2010 be confirmed.The period of disqualification imposed by Magistrate Walker on 4 August 2010 be set aside.In lieu thereof, the appellant be disqualified from holding or obtaining a drivers licence for a period of two years to commence on 22 September 2010.

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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