McCurley v Beath

Case [2017] ACTSC 196


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

McCurley v Beath

Citation:

[2017] ACTSC 196

Hearing Dates:

15 and 26 May 2017

Last Submissions Date:

27 June 2017

DecisionDate:

9 August 2017

Before:

Mossop J

Decision:

See [77]

Catchwords:

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – multiple periods of disqualification under road transport legislation totalling 16.5 years – no order making periods concurrent – disqualification until further order –  sentence manifestly excessive

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – competency of appeal – magistrate made orders disqualifying driver from holding licence for periods identical to periods automatically imposed by the legislation – appeal competent because of the orders made by the Court  

STATUTES – INTERPRETATION – Road transport legislation – relationship between licence disqualification provisions in ss 63(4) and 69 of the Road Transport (General) Act 1999 (ACT) and s 32(7) of the Road Transport (Driver Licensing) Act 1999 (ACT) – how provisions relating to existing disqualifications apply where multiple convictions recorded on a single day – circumstances in which the Court may order disqualifications take effect concurrently

Legislation Cited:

Crimes Act 1900 (ACT), s 160

Criminal Code 2002 (ACT), ss 44, 318(2), 322A(1), 324(1)
Magistrates Court Act 1930 (ACT), ss 208, 208(1), 208(2)
Motor Traffic Act 1936 (ACT), ss 191C, 191G
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19, 20(1), 34(1), 34(2), 34(3)
Road Transport (Alcohol and Drugs) Legislation Amendment Act 2010 (ACT)
Road Transport (Driver Licensing) Act 1998 (NSW), ss 25A, 25A(7)
Road Transport (Driver Licensing) Act 1999 (ACT), ss 32(1), 32(5), 32(7)
Road Transport (General) Act 1999 (ACT), ss 61A, 63(1), 63(2), 63(3), 63(4), 63(5), 64(1), 64(2), 64(3), 64(4), 65, 65(1), 65(2), 65(3), 65(7), 69
Road Transport (Safety and Traffic Management) Act 1999 (ACT), ss 5C, 7(1)
Road Transport (Third Party Insurance) Act 1999 (ACT), s 17(1)
Road Transport (Vehicle Registration) Act 1999 (ACT), s 18(1)

Supreme Court Act 1993 (ACT), s 20

Cases Cited:

Amos v McCarron (No 2) [2017] ACTSC 46

Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157
Director of Public Prosecutions (NSW) v Armstrong [2015] NSWSC 873
Kelly v Apps [2000] FCA 687; 98 FCR 101
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Miller v Teale (1954) 92 CLR 406
O’Brien v The Queen [2015] ACTCA 47
R v Forrest (No 3) [2017] ACTSC 168
R v Ogilvie [2015] ACTSC 296
Reardon v Dzido [2013] ACTSC 197
Roads and Traffic Authority of New South Wales v Papadopoulos [2010] NSWSC 33; 77 NSWLR 189
Saraswati v The Queen (1991) 172 CLR 1
Slawson v Kinnane [2013] ACTSC 3; 274 FLR 186

Zdravkovic v The Queen [2016] ACTCA 53

Parties:

Patrick McCurley (Appellant)

Paul Gerard Beath (Respondent)

Representation:

Counsel

Mr R Davies (Appellant)

Ms S Naidu (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 87 of 2016

Decision…

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McCurley v Beath [2017] ACTSC 196
Case
[2017] ACTSC 196
Decision Date

CaseChat Overview and Summary

The case of McCurley v Beath was an appeal against a sentence imposed by the Magistrates Court of the Australian Capital Territory. The appellant, McCurley, was convicted of multiple driving offences and received a total disqualification from holding a driver’s licence for 16.5 years. This total was made up of several periods of disqualification imposed under the road transport legislation, which were not ordered to run concurrently. The appeal focused on the sentence being manifestly excessive and the manner in which the periods of disqualification were to be served.

The legal issues before the court were twofold. Firstly, whether the appeal was competent given that the magistrate had made orders that were identical to those automatically imposed by the legislation. Secondly, the interpretation of the relevant sections of the Road Transport (General) Act 1999 (ACT) and the Road Transport (Driver Licensing) Act 1999 (ACT) to determine the correct application of the disqualification provisions in cases involving multiple convictions on the same day. Specifically, the court needed to decide if and when the periods of disqualification could be ordered to take effect concurrently.

The court found that the appeal was competent because the magistrate had made specific orders which were not purely a result of the statutory provisions. Regarding the interpretation of the legislation, the court determined that the periods of disqualification could be ordered to run concurrently under certain circumstances. The court noted that where multiple periods of disqualification are imposed, the legislation allows for the court to order them to run concurrently, but only if the court explicitly makes such an order. In this case, the court had not done so, resulting in an excessive sentence. The court further held that the disqualification should not continue until further order of the court but should instead be calculated from the date of the conviction.

The court quashed the sentence and remitted the matter back to the Magistrates Court for re-sentencing, taking into account the correct application of the disqualification provisions. The decision clarified the circumstances under which periods of disqualification can be ordered to run concurrently and emphasised the importance of explicit judicial orders in achieving this outcome.

Orders

Orders of the court

See [77]

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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