Leljak v Fitzroy - [2015] ACTSC 247

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Leljak v Fitzroy
Citation:	[2015] ACTSC 247
Hearing Date:	24 July 2015
DecisionDate:	24 July 2015
Before:	Murrell CJ
Decision:	Appeal dismissed.
Category:	Principal Judgment
Catchwords:	APPEAL – Criminal Law – driving with alcohol in blood – non-conviction order – licence needed for employment – availability of restricted driver licence – whether sentence manifestly excessive
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 17, 33, 35 Magistrates Court Act1930 (ACT) ss 207, 208, 214 Road Transport (Driver Licensing) Regulation2000 (ACT) reg 47(1)
Cases Cited:	Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Proud v Sladic [2014] ACTCA 26
Parties:	Josip Leljak (Appellant) Brett Allan Fitzroy (Respondent)
Representation:	Counsel Mr J Sabharwal (Appellant) Ms P Burgoyne-Scutts (Respondent)
Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 27 of 2015
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 1 April 2015 Case Title: Fitzroy v Leljak Court File Number: CC No 871 of 2015

MURRELL CJ:

The Appeal

The appellant appeals from a decision of the Magistrates Court.

On 1 April 2015, the appellant was convicted of the offence that, on 29 November 2014, he drove with a level 3 reading of alcohol (0.092 g of alcohol per 210L of breath). The Magistrate fined the appellant the sum of $600 and disqualified him from holding a driver licence for the statutory default period of 12 months.

The Magistrate then granted the appellant a restricted driver licence that allowed him to drive between 5:30 AM and 8 PM for employment purposes.

The grounds of appeal are:

(a)The Magistrate failed to properly exercise his discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
(b)The Magistrate failed to take into account the appellant’s need for a driver licence.
(c)The Magistrate incorrectly took the civil application into account when sentencing the appellant.
(d)The sentence is harsh and unjust in all the circumstances.

At the hearing of the appeal, the grounds were expressed as follows:

(a)The Magistrate failed to properly exercise his discretion to proceed under s 17 of the Sentencing Act. The Magistrate considered that s 17 of the Sentencing Act could be invoked only in exceptional circumstances.
(b)The Magistrate conflated the issue of the hardship occasioned to the appellant by conviction, consequent disqualification from holding a driver licence and resulting severe economic impact (which was relevant in the criminal proceedings) with the issue of whether a restricted driver licence should be granted (which was the subject of a civil application).
(c)Having regard to the early plea of guilty, the appellant’s prior good character, the economic impact of a conviction and the fact that the appellant had undertaken a driver education course, the imposition of a conviction was a manifestly excessive penalty.

The appellant seeks an order that he be dealt with pursuant to s 17 of the Sentencing…

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 Leljak v Fitzroy

Details

AGLC: Leljak v Fitzroy [2015] ACTSC 247
Case: [2015] ACTSC 247
Decision Date: 24 July 2015

CaseChat Overview and Summary

Leljak appealed against his conviction and sentence for driving with a blood alcohol level above the prescribed limit, arguing that the sentence imposed was manifestly excessive. The case involved the imposition of a non-conviction order, which disqualified him from obtaining a driver's licence, and the subsequent impact on his employment prospects. The court needed to consider whether the penalty was disproportionate and whether a restricted driver's licence should have been available to him to mitigate the impact on his employment. The court examined the principles of sentencing in the context of alcohol-related driving offences and the availability of alternative sentencing options.

The central legal issues revolved around the proportionality of the sentence, the discretionary power of the court in imposing non-conviction orders, and the consideration of alternative sentencing options, including the issuance of a restricted driver's licence. The court also had to assess whether the sentence was manifestly excessive and whether there was an appropriate balance between punishment and rehabilitation.

In dismissing the appeal, the court found that the sentence was proportionate to the offence and did not constitute a manifestly excessive punishment. The court emphasised that while a restricted driver's licence could be a viable alternative in certain circumstances, it was not mandatory in every case. The court concluded that the sentence was appropriate and did not unduly impact the appellant's employment prospects. The appeal was dismissed, and the original conviction and sentence were upheld.

The court's final order was that the appeal was dismissed. The original conviction and sentence remained in place, with no modification to the terms or conditions imposed on the appellant.

Orders

Orders of the court

Appeal dismissed.

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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