Macpherson v Thorncraft - [2014] ACTSC 277

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Macpherson v Thorncraft
Citation:	[2014] ACTSC 277
Hearing Date(s):	23 September 2014
DecisionDate:	23 September 2014
Before:	Murrell CJ
Decision:	Appeal dismissed. Decision of Magistrates Court amended to accord with conditions specified by the Magistrate.
Category:	Principal Judgment
Catchwords:	APPEAL – Appeal against sentence – offences of driving with prescribed concentration of alcohol and failure to comply with standards relating to tyres – whether sentences manifestly excessive – non-conviction order
Legislation Cited:	Crimes (Sentencing)Act 2005 (ACT) s 17(2) Magistrates Court Act 1930 (ACT) ss 208, 219F Road Transport (Alcohol and Drugs Act) 1977 (ACT) s 19(1) Road Transport (Vehicle Registration) Regulation 2000 (ACT) s 109(2)
Cases Cited:	House v The King (1936) 55 CLR 499 Proud v Sladic [2014] ACTCA 26 R v Ang [2014] ACTCA 17 R v Ellis (1993) 68 A Crim R 449
Parties:	Ian Hugh Macpherson (Appellant) Andrew Thorncraft (Respondent)
Representation:	Counsel Ms K McCann (Appellant) Ms P Burgoyne-Scutts (Respondent)
Solicitors Ben Aulich & Associates (Appellant) Director of Public Prosecutions (ACT) (Respondent)
File Number:	SCA 31 of 2014

MURRELL CJ:

Appeal

On 29 April 2014, the Magistrates Court sentenced the appellant for two offences committed on 19 January 2014. The first was a breach of s 19(1) of the Road Transport (Alcohol and Drugs Act) 1977 (ACT), being the offence of driving with a prescribed concentration of alcohol, 0.085 grams of alcohol per 100 ml of blood, a level 3 offence committed by a first offender. The maximum available penalty is six months’ imprisonment and/or a fine. An automatic disqualification period of 12 months applies, and there is a minimum period of disqualification of three months.

The second offence was a breach of s 109(2) of the Road Transport (Vehicle Registration) Regulation 2000 (ACT), being the offence of driving a motor vehicle which did not comply with tyre standards. The maximum available penalty is a fine of $2800.

In relation to the first matter, the Magistrate convicted the appellant and fined him $350, disqualifying him for the minimum period of three months. In relation to the second matter, her Honour convicted the appellant and fined him $150.

The appellant appealed pursuant to s 208 of the Magistrates Court Act 1930 (ACT).

It was accepted that an appeal to this court pursuant to the Magistrates Court Act is an appeal of the nature described in House v The King (1936) 55 CLR 499. In order to succeed, the appellant must demonstrate either express error or inferred error. In this case, the ground of appeal is that the sentences imposed by the Magistrates Court were manifestly excessive. In other words, the appellant argues that it can be inferred that there must have been a misapplication of principle because the sentences are so manifestly excessive.

In R v Ang [2014] ACTCA 17 at [24], the Court of Appeal (Refshauge, Penfold and Ross JJ) said that: “A claim of manifest inadequacy or excess is a claim that despite…

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

AGLC: Macpherson v Thorncraft [2014] ACTSC 277
Case: [2014] ACTSC 277
Decision Date: 23 September 2014

CaseChat Overview and Summary

The appeal before the court was brought by the appellant, who sought to challenge the sentence imposed by the Magistrates Court for offences of driving with a prescribed concentration of alcohol and failure to comply with tyre standards. The court was asked to determine whether the sentences were manifestly excessive. Additionally, the appellant sought a non-conviction order.

The legal issues that the court needed to address included whether the sentences imposed were manifestly excessive or inappropriate, and whether a non-conviction order should be made in the appellant's favour. The court was required to consider the principles of sentencing, the circumstances of the offences, and the appropriate penalties for each offence.

In dismissing the appeal, the court held that the sentences imposed were not manifestly excessive or inappropriate. The court considered the nature and seriousness of the offences, the appellant's criminal history, and the need to deter similar conduct. The court also noted that the appellant had not demonstrated that the sentences were disproportionate to the offences committed. Furthermore, the court found that a non-conviction order was not warranted in this case.

The appeal was dismissed, and the decision of the Magistrates Court was amended to accord with the conditions specified by the Magistrate.

Orders

Orders of the court

Appeal dismissed. Decision of Magistrates Court amended to accord with conditions specified by the Magistrate.

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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