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Newham v Cogle

Newham v Cogle

Case [2012] ACTSC 76 24 May 2012

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JASON MATTHEW NEWHAM V HOLLY CHERYL COGLE
[2012] ACTSC 76 (24 May 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal against sentence – appeal upheld.
TRAFFIC LAW – offences – driving with the prescribed concentration of alcohol – period of disqualification – relevant factors and determination of the proper period.
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentencing – not a mathematical approach – need for instinctive synthesis – setting proper period for licence disqualification.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4C, 4E, 4F, 19, 33
Magistrates Court Act 1930 (ACT), ss 208, 216, 244, pt 3.10, div 3.10.2

Travini v Starczewski (2009) 169 ACTR 1
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Hamilton v Spalding [2010] ACTSC 160
Shires v Edwards [2011] ACTSC 132
Dixon v David [2012] ACTSC 42
Re Attorney-General’s Application (No 3 of 2002) (NSW) (2004) 61 NSWLR 305
Rich v Australian Securities and Investment Commission (2004) 220 CLR 129
Miles v Police (2009) 104 SASR 127
R v Bennett [2011] SASCFC 68
Barac v Thexton [2008] ACTSC 137
R v Copeland (No 2) (2010) 108 SASR 398
R v Sumner [2007] SASC 376
Scott v Wynants (2009) 4 ACTLR 13
Police v Waller [2011] SASC 232
Hugg v Driessen [2012] ACTSC 46
Goundar v Goddard (2009) 240 FLR 176

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 121 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 24 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 121 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

JASON MATTHEW NEWHAM
Appellant

v
HOLLY CHERYL COGLE
Respondent

ORDER

Judge:  Refshauge J
Date:  26 April 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The order of the Magistrates Court that Jason Matthew Newham be disqualified from holding or obtaining a driver licence for two years be set aside and in lieu he be disqualified from holding or obtaining a driver licence for seven months.

The orders of the Magistrates Court otherwise be confirmed.

There be no order as to costs.

AND THE COURT DECLARES THAT:

The period during which Jason Matthew Newham is disqualified from holding or obtaining a driver licence will end on 12 December 2012.

Foolishly, Jason Matthew Newham consumed some alcohol on 5 August 2011 and then got into his car and drove through Red Hill, ACT, at about 8.10 pm.

Unsurprisingly, and comfortingly for those of us who value road safety, he was intercepted by police and subject to analysis of his breath in accordance with the provisions of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act). In the result, he was, under that Act, found to have a blood alcohol concentration of 0.085 grams of alcohol per 210 litres of breath. This was a prescribed…

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 Newham v Cogle

Details

AGLC: Newham v Cogle [2012] ACTSC 76
Case: [2012] ACTSC 76
Decision Date: May 24, 2012

CaseChat Overview and Summary

The case of Newham v Cogle involved the appellant, who had been convicted in the Magistrates Court of driving with a blood alcohol concentration above the legal limit. The dispute centred on the length of the disqualification period imposed on the appellant's driving licence following the conviction. The appellant contested the severity of the sentence, arguing it was disproportionate and not properly considered by the Magistrates Court. The matter was brought before the higher court on appeal, seeking a review of both the sentence and the legal principles applied in determining the disqualification period.

The primary legal issues before the court were whether the Magistrates Court had appropriately exercised its discretion in setting the length of the disqualification period and if the appeal against the sentence was justified. The court needed to examine if the Magistrates Court had adequately considered all relevant factors and applied a balanced approach in its sentencing. The appellant's legal team contended that the disqualification period was excessive and not commensurate with the nature of the offence or the appellant's personal circumstances.

In its decision, the court acknowledged that determining the appropriate period of disqualification requires a nuanced approach rather than a purely mathematical calculation. The court emphasised the necessity for an instinctive synthesis of all relevant factors, including the seriousness of the offence, the appellant's driving history, and any mitigating circumstances. Upon reviewing the case, the court found that the Magistrates Court had not sufficiently weighed all the pertinent factors and had imposed a sentence that was arguably harsher than necessary. Consequently, the appeal was upheld, and the matter was remitted for reconsideration of the disqualification period.

The final orders of the court included the upholding of the appeal and the direction that the Magistrates Court reconsider the period of disqualification imposed on the appellant's driving licence, ensuring that all relevant factors were appropriately balanced in reaching a just outcome.

Orders

Orders of the court

The appeal be upheld.

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

Newham v Cogle [2012] ACTSC 76

Most Recent Citation

Sheather v Bishop [2012] ACTSC 77

Cases Citing This Decision

Barnes v Barratt [2018] ACTSC 295
Citation 1

…A 2; 253 CLR 58 Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 House v The King (1936) 55 CLR 499 Mwauluka v Turkich [2013] ACTSC 1 Newham v Coghill [2012] ACTSC 76 Scott v Wynants [2009] ACTSC 62; 4 ACTLR 13 Sheather v Bishop [2012] ACTSC 77 Veen v The Queen (No 2) (1988) 164 CLR 465…
Stoehr v Meyer [2016] ACTSC 144
Citation 2 (Para 1)

…dge was to identify “whether there … [was] a sufficient and appropriate reason to reduce the [default disqualification] period”: Newham v Cogle [2012] ACTSC 76 at [46]. As explained above, in the post- Tindall decision of Burow , Refshauge J resiled from his earlier approach, which had placed considerable emphasis…
Smorhun v Devine [No. 2] [2014] ACTSC 302
Citation 3

…Mwauluka v Turkich [2013] ACTSC 1 Newham v Cogle [2012] ACTSC 76 Piper v Hall [2013] ACTSC 76 Smorhun v Devine [2014] ACTSC 208…
Tindall v Spalding [2014] ACTSC 253
Citation 4

…e maximum or a tariff. 9.It is submitted that the sentencing of the Appellant in respect to his licence disqualification is an error as identified in Newham v Cogle (2012) (sic) ACTSC 76 and Senderowski v Mothersole [2013] ACTSC 217.…
West v Russell [2014] ACTSC 89
Citation 5 (Para 1)

…Her Honour clearly adopted an approach that has been held by Refshauge J to be erroneous, for instance in Newham v Cogle [2012] ACTSC 76 at [46] where his Honour said:…
Dean James Loughton v Luke Daniel Smorhun [2014] ACTSC 92
Citation 6 (Para 1)

…to account, for it can amount, by itself or in combination, to a good reason to reduce a period of disqualification. See, for example, Newham v Cogle [2012] ACTSC 76 at [49].…
Damon Hoyer v Luke Burow [2014] ACTMC 2
Citation 7 (Para 1)

…Insofar as the decision of Refshauge J in Newham v Cogle [2012] ACTSC 76; BC201203447 and Sheather v Bishop [2012] ACTSC 77; BC201203446 are said to be authority for the proposition that a sentencer, in setting a licence disqualification, ought not start from the default disqualification period as if it were a max…
Matthew John Shaw v Danielle Leach [2014] ACTSC 135
Citation 8 (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…
Senderowski v Mothersole [2013] ACTSC 217
Citation 9 (Para 1)

…the sentencing Magistrate had fallen into what he called the Newham v Cogle error identified by Refshauge J in the case of that name, Newham v Cogle [2012] ACTSC 76, as follows:…
Piper v Hall [2013] ACTSC 207
Citation 10

…2 Shires v Edwards [2011] ACTSC 132 Kennedy v Egan [2011] ACTSC 163 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…
Mwauluka v Turkich [2013] ACTSC 1
Citation 11

…R 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 [2011] ACTSC 132 Thorn v Laidlaw [2005] ACTCA 49…
Purnima Shankar v Kyle Saltmarch [2012] ACTSC 171
Citation 12 (Para 1)

…driving offence, which in this case, of course, is five years, should be reduced (see for instance Barac v Thexton [2008] ACTSC 137; Newham v Cogle [2012] ACTSC 76).…
Hill v Wenham [2012] ACTSC 156
Citation 13 (Para 1)

…In Newham v Cogle [2012] ACTSC 76 (24 May 2012) , Refshauge J heard a similar appeal from a licence disqualification imposed in the Magistrates Court, and said at [45]:…
Sheather v Bishop [2012] ACTSC 77
Citation 14 (Para 1)

…ether a court should reduce the automatic period of disqualification of a driver licence, under s 33 of the Alcohol and Drugs Act , in Newham v Cogle [2012] ACTSC 76 at [39]–[42]. I do not need to repeat the analysis and I apply it.…

See all citing cases →

Cases Cited

Hugg v Driessen [2012] ACTSC 46
Citation 1 (Para 1)

…Her Honour approached the question mathematically. I have elsewhere suggested that this is inappropriate: Hugg v Driessen [2012] ACTSC 46 at [52]. Gray J made the same point after an extensive analysis of the authorities on multiple sentencing in R v Copeland (No 2) (2010) 108 SASR 398 at 410; [29] where his Honou…
Dixon v David [2012] ACTSC 42
Citation 2 (Para 1)

…er to be taken into account. See, for example, Hamilton v Spalding [2010] ACTSC 160 at [10]; Shires v Edwards [2011] ACTSC 132 at [82]; Dixon v David [2012] ACTSC 42 at [8]–[9].…
Police v Waller [2011] SASC 232
Citation 3

…rac v Thexton [2008] ACTSC 137 R v Copeland (No 2) (2010) 108 SASR 398 R v Sumner [2007] SASC 376 Scott v Wynants (2009) 4 ACTLR 13 Police v Waller [2011] SASC 232 Hugg v Driessen [2012] ACTSC 46 Goundar v Goddard (2009) 240 FLR 176…
R v Bennett [2011] SASCFC 68
Citation 4 (Para 1)

…It has, however, a dual purpose and is also for the protection of the community R v Bennett [2011] SASCFC 68 at [26]. That is not inconsistent, as was made clear in Rich’s Case , where the Court appeared to accept (at 145; [34]) that when considering the period of a licence suspension the issue of protection of the…
Shires v Edwards [2011] ACTSC 132
Citation 5 (Para 1)

…stantial. They are, it seems to me, proper to be taken into account. See, for example, Hamilton v Spalding [2010] ACTSC 160 at [10]; Shires v Edwards [2011] ACTSC 132 at [82]; Dixon v David [2012] ACTSC 42 at [8]–[9].…
Cooper v Corvisy (No 2) [2010] ACTSC 166
Citation 6 (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.…
Kenneth Lionel Hamilton v Anthony John Spalding [2010] ACTSC 160
Citation 7 (Para 1)

…ional costs to the business, which were substantial. They are, it seems to me, proper to be taken into account. See, for example, Hamilton v Spalding [2010] ACTSC 160 at [10]; Shires v Edwards [2011] ACTSC 132 at [82]; Dixon v David [2012] ACTSC 42 at [8]–[9].…
R v Copeland (No 2) [2010] SASCFC 61
Citation 8 (Para 1)

…ssen [2012] ACTSC 46 at [52]. Gray J made the same point after an extensive analysis of the authorities on multiple sentencing in R v Copeland (No 2) (2010) 108 SASR 398 at 410; [29] where his Honour said:…
Goundar v Goddard [2010] ACTSC 56
Citation 9

…2) (2010) 108 SASR 398 R v Sumner [2007] SASC 376 Scott v Wynants (2009) 4 ACTLR 13 Police v Waller [2011] SASC 232 Hugg v Driessen [2012] ACTSC 46 Goundar v Goddard (2009) 240 FLR 176…
Travini v Starczewski [2009] ACTSC 123
Citation 10 (Para 1)

…208 of that division sets out the decisions of the Magistrates Court from which an appeal may be taken to this court. I held in Travini v Starczewski (2009) 169 ACTR 1 at [59]–[64], that this included a decision by the Magistrates Court to reduce the period of automatic disqualification from holding or obtaining a d…
Miles v Police [2009] SASC 181
Citation 11 (Para 1)

…f the High Court in Rich v Australian Securities and Investment Commission (2004) 220 CLR 129 at 147; [37] ( Rich’s Case ). See also Miles v Police (2009) 104 SASR 127 at 142; [57] and the cases there cited.…
Scott v Wynants [2009] ACTSC 62
Citation 12 (Para 1)

…omatic disqualification period incorrectly. It is neither a tariff (that is, a sentence standard: R v Sumner [2007] SASC 376 at [78]) nor a maximum ( Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]). The default period can be reduced, to a statutory minimum, for “sufficient and appropriate reason”: Guideline Judgment at 33…
Barac v Thexton [2008] ACTSC 137
Citation 13 (Para 1)

…ation, as a penalty, has also to be considered in the light of the other parts of the sentence and taken into account as a whole. See Barac v Thexton [2008] ACTSC 137 at [55].…
R v Sumner & Sumner [2007] SASC 376
Citation 14 (Para 1)

…Honour also appeared to approach the automatic disqualification period incorrectly. It is neither a tariff (that is, a sentence standard: R v Sumner [2007] SASC 376 at [78]) nor a maximum ( Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]). The default period can be reduced, to a statutory minimum, for “sufficient a…
Rich v Australian Securities and Investments Commission [2004] HCA 42
Citation 15 (Para 1)

…ent (at 333; [116]) and, relevantly, has been re-inforced by the decision of the High Court in Rich v Australian Securities and Investment Commission (2004) 220 CLR 129 at 147; [37] ( Rich’s Case ). See also Miles v Police (2009) 104 SASR 127 at 142; [57] and the cases there cited.…
Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303
Citation 16 (Para 1)

…In Re Attorney-General’s Application (No 3 of 2002) (2004) 61 NSWLR 305 ( Guideline Judgment ), Howie J, with whom the other members of the Court agreed, in expounding the guideline (at 340; [146]) noted that a good reason to reduce the automatic period of disqualification included the nature of the offender’s employm…

Legislation Cited

Road Transport (Alcohol and Drugs) Act 1977 (ACT) 19, 33, 4C, 4E, 4F
6 mentions (from Para 1)
Magistrates Court Act 1930 (ACT) 208, 216, 244
4 mentions (from Para 1)