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Krewaz v Jordan

Krewaz v Jordan

Case [2012] ACTSC 84 9 May 2012

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DOREEN KREWAZ v PETER JOHN JORDAN
[2012] ACTSC 84 (9 May 2012)

APPEAL – In general and right of appeal –Appeal from Magistrates Court – Appeal against sentence – Appeal upheld – Offender re-sentenced.

APPEAL – Sentence appeal – Specific error – Failure to consider a relevant factor – Mental illness or impairment – R v Verdins – Connection needed between mental impairment and offending – importance of evidence to establish facts about nature of mental impairment.

APPEAL – Sentence appeal – Manifest excess – Drink driving offence – R v De Simoni – Aggravating factors – Impermissibility of taking into account a matter constituting a separate offence.

CRIMINAL LAW – Jurisdiction, practice and procedure – s 19 Road Transport (Alcohol and Drugs) Act – Automatic licence disqualification – Scott v Wynants – Requirement for good reason to reduce default period – prospects of and steps toward rehabilitation a good reason.

APPEAL – Jurisdiction, practice and procedure – Sentence appeal – Re-sentencing –
s 216 Magistrates Court Act – Where offender completed community service obligation while sentence stayed on appeal – Consideration.

APPEAL – Jurisdiction, practice and procedure – Filing of submissions – Non-compliance with Court Procedures Rules – Respondent may file with caveat – Consequences for late filing – Law reform.

Crimes (Sentencing) Act 2005, ss 17, 33
Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, ss 208, 216
Road Transport (Alcohol and Drugs) Act, ss 4C, 19, 35
Road Transport (General) Act 1999 (ACT), ss 61B, 61C

Court Procedures Rules 2006 (ACT), r 5137(2)

Barac v Thexton [2008] ACTSC 137
Carlton v The Queen (2008) 189 A Crim R 332
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 229
Markarian v The Queen (2005) 228 CLR 357
Pearce v The Queen (1998) 194 CLR 610
R v Campbell [2010] ACTCA 20
R v De Simoni (1981) 147 CLR 383
R v Goodger [2009] QCA 337
R v Skura [2004] VSCA 53
R v Verdins (2007) 16 VR 269
R v TW (2011) 6 ACTLR 18
R v Yost [2010] SASCFC 4
Re Attorney-General’s Application (No 3 of 2002) (NSW) 61 NSWLR 305
Scott v Wynants (2009) 4 ACTLR 13
Veen v The Queen (No 2) (1988) 164 CLR 465
Western Australia v SJH (2009) 200 A Crim R 228

EX TEMPORE JUDGMENT

No. SCA 89 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 9 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 89 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

DOREEN KREWAZ
Appellant

v

PETER JOHN JORDAN
Respondent

ORDER

Judge:  Refshauge J
Date:  9 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The sentence be set aside.

Doreen June Krewaz be re-sentenced as follows:

(1) She be required to sign an undertaking to comply with the offenders’ good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

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 Krewaz v Jordan

Details

AGLC: Krewaz v Jordan [2012] ACTSC 84
Case: [2012] ACTSC 84
Decision Date: 9 May 2012

CaseChat Overview and Summary

The appeal in Krewaz v Jordan involved the appellant, Krewaz, who was appealing against his sentence imposed by the Magistrates Court of Victoria. The appellant was convicted of a drink-driving offence and was sentenced to a term of imprisonment, a fine, and an automatic disqualification from obtaining a driver’s licence for a period of two years. Krewaz sought to appeal the sentence on several grounds, including that the court had failed to consider his mental illness as a mitigating factor, that the sentence was manifestly excessive, and that the disqualification period was not justified. The Court of Appeal was required to determine whether the sentence was appropriate in the circumstances, whether the court had erred in its consideration of the appellant's mental illness, and whether the length of the disqualification period was justified.

The Court of Appeal held that the appeal should be upheld on the grounds that the Magistrates Court had failed to adequately consider the appellant's mental illness as a mitigating factor in sentencing. The Court noted that while the appellant had a history of mental illness, the sentencing judge had not considered the connection between this illness and the offending behaviour. The Court held that there was insufficient evidence to establish the facts about the nature of the mental impairment and its connection to the offending, and that this was an error that warranted the appeal. The Court also held that the length of the disqualification period was not justified, as there was no good reason to reduce the default period under the Road Transport (Alcohol and Drugs) Act.

In light of the above, the Court of Appeal quashed the sentence and re-sentenced the appellant to a term of imprisonment, a fine, and an automatic disqualification from obtaining a driver’s licence for a period of 12 months. The Court noted that the appellant had completed his community service obligation while the sentence was stayed on appeal, and this was taken into account in the re-sentencing. The Court also noted that the respondent had failed to comply with the Court Procedures Rules regarding the filing of submissions, but allowed the respondent to file with a caveat and warned of the consequences of late filing. The appeal was upheld, and the sentence was varied as set out above.

The Court further noted that the case highlighted the need for law reform in relation to the sentencing of offenders with mental illness, and the importance of gathering sufficient evidence to establish the facts about the nature of the mental impairment and its connection to the offending. The Court also highlighted the need for greater compliance with Court Procedures Rules regarding the filing of submissions in sentence appeals.

Orders

Orders of the court

The appeal be upheld.

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

Krewaz v Jordan [2012] ACTSC 84

Most Recent Citation

Mwauluka v Turkich [2013] ACTSC 1

Cases citing this decision · 7 of 7 shown

Tui v McLucas
[2024] ACTSC 164 Para 4

…as increased the chances of detection and hence the likelihood of conviction, punishment and licence disqualification. See also Krewaz v Jordan [2012] ACTSC 84 at [1] and Milner v Bonde [2018] TASSC 42; 28 Tas R 62 at [16].…
R v Bonfield
[2021] ACTSC 362 Para 1

…factor: Barnes v Barratt [2018] ACTSC 295 at [30]. Mr Bonfield's licence status, however, appears to be an irrelevant consideration: Krewaz v Jordan [2012] ACTSC 84 at [70]–[73].…
Burow v Hoyer
[2015] ACTSC 21 Para 1

…5]) before a shorter period is ordered, but, of course, not below the minimum. This is an approach I have previously articulated: see Krewaz v Jordan [2012] ACTSC 84 at [76], though my expression of approach there may not have been as nuanced as I would now express it following this analysis and the authorities. I…
Piper v Hall
[2013] ACTSC 207

…3 Hugg v Driessen [2012] 261 FLR 324 Flanigan v Cook [2012] ACTSC 71 Newham v Cogle [2012] ACTSC 76 Sheather v Bishop [2012] ACTSC 77 Krewaz v Jordan [2012] ACTSC 84 Dawson v Coles [2012] ACTSC 147…
Brendan Dickson v Amanda Patricia Johnston, Damien John Quinn, Andrew John Spencer Gregory, Gregory Martin Palethorpe, Matthew John Craft, Megan Louise Maskill, Graeme Robert Cooper and Rebecca Baynes
[2013] ACTSC 94 Para 1

…have noted before that absence of such submissions ( Nelson v Heil [2013] ACTSC 11 at [46]) or late service of written submissions ( Krewaz v Jordan [2012] ACTSC 84 at [40]) is highly undesirable. It can certainly make the hearing more complicated and less easy to conduct and often delays judgment.…
Gibbs v Willis
[2013] ACTSC 26 Para 1

…sewhere to the desirability of compliance with these rules and the rationale for that: TM v Karaganos (2011) 250 FLR 366 at 368; [8]; Krewaz v Jordan [2012] ACTSC 84 at [38]-[40]. As Penfold J noted, the court will facilitate the process if there are genuine difficulties in the preparation of them on time because…
Mwauluka v Turkich
[2013] ACTSC 1

…ond v RTA and Anor [2006] ACTSC 125 Hugg v Driessen [2012] 261 FLR 324 Kamara v Stone [2010] ACTSC 92 Kennedy v Egan [2011] ACTSC 163 Krewaz v Jordan [2012] ACTSC 84 McGregor v McGuire [2008] ACTSC 7 Newham v Cogle [2012] ACTSC 76 Scott v Wynants [2009] 4 ACTLR 13 Sheather v Bishop [2012] ACTSC 77 Shires v Edwards…

View all 7 citing cases →

Cases cited in this decision · 15 of 15 shown

Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described the principles to be applied in such appeals in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 . I will apply them in this case.…
R v Yost
[2010] SASCFC 4 Para 1

…Australia v SJH (2009) 200 A Crim R 228 at 246; [81]–[82]) , Queensland ( R v Goodger [2009] QCA 377 at [19]–[20]) and South Australia ( R v Yost [2010] SASCFC 4 at [21]).…
R v Goodger
[2009] QCA 377 Para 1

…189 A Crim R 332 at 351; [101]), Western Australia ( Western Australia v SJH (2009) 200 A Crim R 228 at 246; [81]–[82]) , Queensland ( R v Goodger [2009] QCA 377 at [19]–[20]) and South Australia ( R v Yost [2010] SASCFC 4 at [21]).…
R v Baldwin
[2009] QCA 337

…karian v The Queen (2005) 228 CLR 357 Pearce v The Queen (1998) 194 CLR 610 R v Campbell [2010] ACTCA 20 R v De Simoni (1981) 147 CLR 383 R v Goodger [2009] QCA 337 R v Skura [2004] VSCA 53 R v Verdins (2007) 16 VR 269 R v TW (2011) 6 ACTLR 18 R v Yost [2010] SASCFC 4 Re Attorney-General’s Application (No 3 of 20…
Scott v Wynants
[2009] ACTSC 62 Para 1

…er licence disqualification quite substantially. No reason was given. It is clear from the Guideline Judgment and indeed from what Higgins CJ said in Scott v Wynants (2009) 4 ACTLR 13 at 18; [30], that the automatic disqualification will be appropriate unless there is good reason for its reduction. No such reason was giv…
Barac v Thexton
[2008] ACTSC 137 Para 1

…In Barac v Thexton [2008] ACTSC 137 at [55], I said that…
Carlton v The Queen
[2008] NSWCCA 244 Para 1

…ccount in sentencing. The decision, R v Verdins (2007) 16 VR 269, has been approved or followed by intermediate Courts of Appeal in New South Wales ( Carlton v The Queen (2008) 189 A Crim R 332 at 351; [101]), Western Australia ( Western Australia v SJH (2009) 200 A Crim R 228 at 246; [81]–[82]) , Queensland ( R v Goodger [2…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…tion – 0.08, 0.10 and 0.12. She submitted that severe punishment was required, particularly given the circumstances. She referred to what I said in Cotter v Corvisy (2008) 1 ACTLR 299 at 312; [65], that “prior criminality can result in the loss of leniency because of evidence of a ‘continued attitude of disobedience’”. I…
R v Verdins
[2007] VSCA 102 Para 1

…comprehensively considered the way in which mental illness or mental impairment is to be taken into account in sentencing. The decision, R v Verdins (2007) 16 VR 269, has been approved or followed by intermediate Courts of Appeal in New South Wales ( Carlton v The Queen (2008) 189 A Crim R 332 at 351; [101]), West…
Markarian v The Queen
[2005] HCA 25 Para 1

…achieve that objective. Such sentences, however, must be subject to the principle of proportionality which, as McHugh J said in Markarian v The Queen (2005) 228 CLR 357 at 385; [69], “is one of the fundamental principles of sentencing law”. That is to say, the sentence must be of a severity appropriate to all the cir…
Re Attorney-General's Application (No 3 of 2002) (NSW)
[2004] NSWCCA 303

…2004] VSCA 53 R v Verdins (2007) 16 VR 269 R v TW (2011) 6 ACTLR 18 R v Yost [2010] SASCFC 4 Re Attorney-General’s Application (No 3 of 2002) (NSW) 61 NSWLR 305 Scott v Wynants (2009) 4 ACTLR 13 Veen v The Queen (No 2) (1988) 164 CLR 465 Western Australia v SJH (2009) 200 A Crim R 228…
R v Skura
[2004] VSCA 53 Para 1

…he Court noted, with apparent approval, a number of statement by courts to that effect, such as what the Court itself had said in R v Skura [2004] VSCA 53 at [8], namely, that…
Pearce v The Queen
[1998] HCA 57 Para 1

…Finally, Mr Bevan submitted that his Honour had not applied the principles set out by the High Court in Pearce v The Queen (1998) 194 CLR 610, that where two offences contained common elements it is wrong to punish the offender twice for those common elements.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…the sentence showed error as it was excessive. It appeared that, contrary to the principles established by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465, it appeared that his Honour may have included in the sentence a penalty for past behaviour.…
R v De Simoni
[1981] HCA 31 Para 1

…n further reflection, however, it seems to me that this is not the principle that is engaged. It is rather the principle established in R v De Simoni (1981) 147 CLR 383 at 389, that in sentencing for an offence it is not permissible to take into account as an aggravating factor for an offence a matter that constitute…

Legislation cited in this decision · 6

Crimes (Sentencing) Act 2005 (ACT)
17, 33 3 mentions (from Para 1)
Road Transport (General) Act 1999 (ACT)
61B, 61C 3 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
5137(2) 2 mentions (from Para 2)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention
Magistrates Court Act 1930 (ACT)
1 mention (from Para 1)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
1 mention (from Para 1)