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Matthew John Shaw v Danielle Leach

Matthew John Shaw v Danielle Leach

Case [2014] ACTSC 135 22 April 2014

Disqualification from holding or obtaining a driver licence

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MATTHEW JOHN SHAW v DANIELLE LEACH
[2014] ACTSC 135 (22 April 2014)

APPEAL AND NEW TRIAL – In General and Right of Appeal – Appeal from Magistrates Court – Prescribed concentration of alcohol – Appeal upheld

TRAFFIC LAW – Offences – Sentencing – Disqualification from holding or obtaining a driver licence – Relevance of offender not driving prior to sentence – Relevant if proved – To be taken into account but not mathematically

Crimes (Sentencing) Act 2005 (ACT), s 63
Magistrates Court Act 1930 (ACT), ss 209, 214, Pt 3.10, Div 3.10
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 15AA, 19, 35
Road Transport (General) Act 1999 (ACT), s 61B

Barac v Thexton [2008] ACTSC 137
Boeyen v The Queen (1990) 50 A Crim R 482
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Diamond Leisure Pty Ltd v Gusmao (1993) 114 FLR 293
Gallo v Dawson (1990) ALJR 458
Hamilton v Spalding [2010] ACTSC 160
Hill v Wenham [2012] ACTSC 156
In the NSW Guideline Judgment application by the Attorney-General under s 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of alcohol under s 94 of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305
Maher v Carpenter (2012) ACTLR 216
Mayen v Ryan [2013] ACTSC 172
Mateta v McDonough [2011] ACTSC 196
Meredith v Commonwealth (No 2) (2013) 280 FLR 385
Mwauluka v Turkich [2013] ACTSC 1
Newham v Cogle [2012] ACTSC 76
Piper v Hall [2013] ACTSC 207
R v Foster (1996) 187 LSJS 135
Scott v Wynants (2009) 4 ACTLR 13
Sheather v Bishop [2012] ACTSC 77
Shires v Edwards [2011] ACTSC 132
Travini v Starczewski [2010] ACTSC 100
Wong v The Queen (2001) 207 CLR 584

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 24 of 2014

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 22 April 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCA 24 of 2014
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MATTHEW JOHN SHAW
AND
DANIELLE LEACH

ORDER

Judge:  Refshauge ACJ
Date:  22 April 2014
Place:  Canberra

THE COURT ORDERS THAT:

Matthew John Shaw be granted leave to appeal from the decision of the Magistrates Court on 14 August 2012.

Matthew John Shaw file and serve a notice of appeal in the form annexed as annexure A to his affidavit sworn on 1 April 2014 and that the same be issued without the requirement for a date for settling the appeal papers.

The appeal be upheld.

The conviction and fine entered and imposed in the Magistrates Court be confirmed.

The period of the disqualification imposed in the Magistrates Court be set aside and in lieu, Matthew John Shaw be disqualified from holding or obtaining a licence from 14 August 2012 to 12 July 2014.

THE COURT DECLARES THAT:

As…

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 Matthew John Shaw v Danielle Leach

Details

AGLC: Matthew John Shaw v Danielle Leach [2014] ACTSC 135
Case: [2014] ACTSC 135
Decision Date: 22 April 2014

CaseChat Overview and Summary

In the matter of Matthew John Shaw v Danielle Leach, the respondent appealed a decision made by the Magistrates Court of Victoria on 14 August 2012. The primary issue was the sentence imposed on Shaw, specifically the duration of his disqualification from holding or obtaining a driver’s licence. Shaw was convicted of driving with a prescribed concentration of alcohol, and the Magistrates Court imposed a disqualification period that the respondent argued was excessive.

The legal issues before the court included whether the disqualification period was proportionate to the offence, and whether the court should consider Shaw's prior driving history in determining the sentence. The court was also tasked with assessing whether the Magistrates Court had correctly applied the relevant legal principles in arriving at the disqualification period. The respondent argued that the court should not have imposed a lengthy disqualification period since he had not driven prior to the offence. The Crown, on the other hand, contended that the court had appropriately considered the gravity of the offence and the need to deter future violations.

The court found that the Magistrates Court had not adequately taken into account the fact that Shaw had not driven prior to his conviction, which was a relevant factor in determining the appropriate disqualification period. The court held that while Shaw's prior driving history was not a mathematical determinant, it was a relevant consideration in the sentencing process. The court determined that the disqualification period imposed was excessive and disproportionate to the offence, leading to the setting aside of the original disqualification period and the imposition of a new period from 14 August 2012 to 12 July 2014. The conviction and fine were upheld.

The court confirmed the conviction and fine, while setting aside the original disqualification period and substituting it with a new period of disqualification from 14 August 2012 to 12 July 2014. Shaw was granted leave to appeal, and the appeal was upheld. The respondent was ordered to file and serve a notice of appeal in the prescribed form.

Orders

Orders of the court

1. Matthew John Shaw be granted leave to appeal from the decision of the Magistrates Court on 14 August 2012.

2. Matthew John Shaw file and serve a notice of appeal in the form annexed as annexure A to his affidavit sworn on 1 April 2014 and that the same be issued without the requirement for a date for settling the appeal papers.

3. The appeal be upheld.

4. The conviction and fine entered and imposed in the Magistrates Court be confirmed.

5. The period of the disqualification imposed in the Magistrates Court be set aside and in lieu, Matthew John Shaw be disqualified from holding or obtaining a licence from 14 August 2012 to 12 July 2014.

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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Citations

AGLC Citation

Matthew John Shaw v Danielle Leach [2014] ACTSC 135

Most Recent Citation

Burow v Hoyer [2015] ACTSC 21

Cases citing this decision · 2 of 2 shown

Tui v McLucas
[2024] ACTSC 164 Para 3

…e as a result of such a mistaken belief may be taken into account in determining the period of disqualification to be imposed on appeal: Shaw v Leach [2014] ACTSC 135 at [30] – [33]; Senderowski v Mothersole [2013] ACTSC 217 at [23] and Irving v Head [2016] ACTSC 37; 75 MVR 13 at [105].…
Burow v Hoyer
[2015] ACTSC 21 Para 1

…re may not have been as nuanced as I would now express it following this analysis and the authorities. In any event, as I pointed out in Shaw v Leach [2014] ACTSC 135 at [37], it is not necessary that reasons for ordering a shorter period of disqualification than the default period be special or exceptional. This w…

View all 2 citing cases →

Cases cited in this decision · 18 of 18 shown

Meredith v Commonwealth (No 2)
[2013] ACTSC 221 Para 1

…I pointed out in Meredith v Commonwealth (No 2) (2013) 280 FLR 385 at 435; [426] that there is no reason to suppose that a false understanding only has a limited temporal effect; unless there is an identifiable occasion where the person with the false understanding is disabused of the falsity, one would ordinarily ex…
Piper v Hall
[2013] ACTSC 207 Para 1

…The confusion about the exact period of disqualification is very unfortunate. Nevertheless, unlike in Piper v Hall [2013] ACTSC 207, the matter of the suspension under s 61B of the Road Transport (General) Act was at least raised. This seems to me to be important and impose an obligation upon police and prosecution…
Mayen v Ryan
[2013] ACTSC 172 Para 1

…In Mayen v Ryan [2013] ACTSC 172, I considered a range of authorities which set out the principles that should be applied when considering an application to extend the time within which to be permitted to appeal a decision of a court. While it is very important to provide an explanation for the delay in seeking to…
Mwauluka v Turkich
[2013] ACTSC 1 Para 1

…n-driving to be taken into account if the court is satisfied that there has been such a period when a defendant did not drive. See Mwauluka v Turkich [2013] ACTSC 1 at [49].…
Hill v Wenham
[2012] ACTSC 156 Para 1

…ily circumstances ( Barac v Thexton [2008] ACTSC 137 at [49]) and employment circumstances ( Shires v Edwards [2011] ACTSC 132 at [82], Hill v Wenham [2012] ACTSC 156 at [16]), have been accepted as reasons for reducing a period of driver licence disqualification. Nevertheless, it is proper for pre-sentence non-dri…
Newham v Cogle
[2012] ACTSC 76 Para 1

…at 18; [33], without disapproval that “it has clearly enough been common for the default period to be reduced”. I have set out in Newham v Cogle [2012] ACTSC 76 at [45]-[46] and Sheather v Bishop [2012] ACTSC 77 at [46]-[49] the approach to setting the disqualification period. Penfold J, in Mwauluka v Turkich , s…
Sheather v Bishop
[2012] ACTSC 77 Para 1

…rly enough been common for the default period to be reduced”. I have set out in Newham v Cogle [2012] ACTSC 76 at [45]-[46] and Sheather v Bishop [2012] ACTSC 77 at [46]-[49] the approach to setting the disqualification period. Penfold J, in Mwauluka v Turkich , suggested this involved a two-stage process, which h…
Maher v Carpenter
[2012] ACTSC 38 Para 1

…nts. While some degree of inquisitorial inquiry will be appropriate to ensure that the unrepresented litigants are not disadvantaged, as I set out in Maher v Carpenter (2012) ACTLR 216, it is however difficult to identify precisely the extent to such assistance. In my view, the failure to have this taken into account in th…
Christopher Mateta v Katherine McDONOUGH; And ANDREW McKENZIE
[2011] ACTSC 196 Para 1

…It may not need to be as formal as the declaration I made in Mateta v McDonough [2011] ACTSC 196 where, at [20]-[23], I explained why in some cases that may be necessary, but at the very least the period for which the court ordered automatic disqualification is reduced under s 35 of the Alcohol and Drugs Act should…
Shires v Edwards
[2011] ACTSC 132 Para 1

…reason for reducing the period. Thus family circumstances ( Barac v Thexton [2008] ACTSC 137 at [49]) and employment circumstances ( Shires v Edwards [2011] ACTSC 132 at [82], Hill v Wenham [2012] ACTSC 156 at [16]), have been accepted as reasons for reducing a period of driver licence disqualification. Nevertheles…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles to be applied in appeals against a sentence imposed in the Magistrates Court; I apply them in this case. Such sentences are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed …
Kenneth Lionel Hamilton v Anthony John Spalding
[2010] ACTSC 160 Para 1

…(2009) 4 ACTLR 13 at 18; [32]. That approach is regularly applied in this court. See Travini v Starczewski [2010] ACTSC 100, Hamilton v Spalding [2010] ACTSC 160 and Mwauluka v Turkich . In New South Wales, In the NSW Guideline Judgment application by the Attorney-General under s 37 of the Crimes (Sentencing Proce…
Tracy Graf v Tristan Thexton
[2010] ACTSC 100 Para 1

…son” to reduce it. See Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]. That approach is regularly applied in this court. See Travini v Starczewski [2010] ACTSC 100, Hamilton v Spalding [2010] ACTSC 160 and Mwauluka v Turkich . In New South Wales, In the NSW Guideline Judgment application by the Attorney-General unde…
Scott v Wynants
[2009] ACTSC 62 Para 1

…Mr Reardon submitted that the default disqualification is to be imposed unless there is a “good reason” to reduce it. See Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]. That approach is regularly applied in this court. See Travini v Starczewski [2010] ACTSC 100, Hamilton v Spalding [2010] ACTSC 160 and Mwauluka v Turkich…
Barac v Thexton
[2008] ACTSC 137 Para 1

…ses a particular or especially severe hardship on a defendant, there is a reason for reducing the period. Thus family circumstances ( Barac v Thexton [2008] ACTSC 137 at [49]) and employment circumstances ( Shires v Edwards [2011] ACTSC 132 at [82], Hill v Wenham [2012] ACTSC 156 at [16]), have been accepted as rea…
Re Attorney-General's Application (No 3 of 2002) (NSW)
[2004] NSWCCA 303 Para 1

…ffence of High Range Prescribed Concentration of alcohol under s 94 of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 at 336; [127] (the Guideline Judgment ) uses the phrase “sufficient and appropriate reason”.…
Wong v The Queen
[2001] HCA 64

…LSJS 135 Scott v Wynants (2009) 4 ACTLR 13 Sheather v Bishop [2012] ACTSC 77 Shires v Edwards [2011] ACTSC 132 Travini v Starczewski [2010] ACTSC 100 Wong v The Queen (2001) 207 CLR 584…
Gallo v Dawson
[1990] HCA 30 Para 1

…o necessary for a court to consider whether the court must extend time in order to do justice between the parties. As McHugh J said in Gallo v Dawson (1990) ALJR 458 at 459:…

Legislation cited in this decision · 5

Road Transport (Alcohol and Drugs) Act 1977 (ACT)
15AA, 19, 35 4 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
209, 214 3 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
63 2 mentions (from Para 1)
Road Transport (General) Act 1999 (ACT)
61B 2 mentions (from Para 1)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
1 mention (from Para 1)