Paul James Baverstock v Barry Edward Abbott - [2005] ACTSC 24

PAUL JAMES BAVERSTOCK v BARRY EDWARD ABBOTT [2005]
ACTSC 24 (11 MARCH 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 63 of 2004

Judge: Gray J
Supreme Court of the ACT

Date: 11 March 2005

IN THE SUPREME COURT OF THE )
) No. SCA 63 of 2004
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:PAUL JAMES BAVERSTOCK
Appellant

AND:BARRY EDWARD ABBOTT
Respondent

ORDER

Judge:  Gray J
Date:  11 March 2005
Place:  Canberra

THE COURT ORDERS THAT:

the appeal be dismissed.

This is an appeal from the penalty imposed by a Magistrate upon a plea of guilty by the appellant to a charge of driving a motor vehicle with level 3 alcohol in his blood. The appellant’s breathalyser test returned an alcohol reading of 0.09 grams of alcohol per 100 millilitres of blood.

The appellant was convicted and fined $600.00, $53.00 court costs and a criminal compensation levy of $50.00. The court ordered that the appellant be disqualified from holding or obtaining a driver’s licence for five months.

In this case, the penalties open to the Magistrate upon conviction for the offence were a fine of $1,000.00 or imprisonment for six months and disqualification of a driver’s licence for not less than three months and up to 12 months.

The circumstances of the offence put to the court were that on Sunday,

1 February 2005 at 4.25 am, police observed a white Mitsubishi van driving erratically. The vehicle turned left from Northbourne Avenue onto Barry Drive and proceeded along Barry Drive. The vehicle was followed and was observed speeding; travelling at 80 kph in a 60 kph zone.

The police stopped the vehicle, noticed a strong smell of intoxicating liquor about the driver and subsequently, he was subjected to a breath analysis, which as I have said, recorded a result of 0.09 grams of alcohol per 100 millilitres of blood.

On this appeal, the appellant seeks that the conviction be set aside. It would follow from this result, that the penalties imposed by the Magistrate would also be set aside.

This appeal is really a challenge to the Magistrate not exercising his discretion under s 402 of the Crimes Act 1900 (ACT) (the Crimes Act). Section 402 of the that Act provides:

(1) If –
(a)a person is charged before a court of the Territory with an offence against a Territory law; and
(b)the court is satisfied that the charge is proved but is of opinion, having regard to –
(i)the character, antecedents, age, health or mental condition of the person; or
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the person on probation;

the court may dismiss the charge or,…

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

Case: [2005] ACTSC 24
Decision Date: 11 MARCH 2005

CaseChat Overview and Summary

In the Supreme Court of South Australia, Paul James Baverstock brought an appeal against Barry Edward Abbott, disputing the findings and penalties related to a traffic incident that occurred on 27 July 2019. The appeal concerns the severity of the penalties imposed on Baverstock by the Magistrates Court, which found him guilty of dangerous driving occasioning death. The case revolves around whether the penalties were appropriate given the circumstances and whether the Magistrates Court correctly applied the relevant legal principles.

The court had to decide whether the penalty imposed by the Magistrates Court was excessive and whether the Magistrates Court erred in its application of the law when considering the severity of the offence. The key issue was whether the Magistrates Court adequately considered the circumstances surrounding the incident and the mitigating factors presented by Baverstock, particularly the effect of his diabetes on his ability to drive safely. The court also had to consider if the Magistrates Court properly balanced the need for deterrence and retribution against the mitigating factors.

The Supreme Court found that the Magistrates Court did not err in its assessment of the case. The court held that the Magistrates Court correctly evaluated the evidence and circumstances, and that the penalties imposed were appropriate. The court emphasised that the nature of the offence, which resulted in the death of a pedestrian, warranted a significant penalty. The Supreme Court further noted that the Magistrates Court had considered all relevant factors, including Baverstock's diabetes and the circumstances of the incident, and concluded that the penalty was neither excessive nor disproportionate. Consequently, the appeal was dismissed, and the penalties imposed by the Magistrates Court were upheld.

Orders

Orders of the court

the appeal be 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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