Richards v Burnes

[2017] ACTSC 117

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Richards v Burnes

Citation:

[2017] ACTSC 117

Hearing Date:

19 May 2017

DecisionDate:

19 May 2017

Before:

Elkaim J

Decision:

See paragraph [26]

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against sentence – whether the sentence imposed was manifestly excessive.

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 17 and 18

Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 19

Cases Cited:

Lumby v Cooper [2008] ACTSC 53

Roseby v Harman [2014] ACTSC 125

Parties:

Peter Richards (Appellant)

Jon Burnes (Respondent)

Representation:

Counsel

Mr P Edmonds (Appellant)

Ms S Naidu (Respondent)

Solicitors

Canberra Criminal Lawyers (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 84 of 2016

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Magistrate Boss

Date of Decision:         24 November 2016

Case Title:  DPP v Richards

Court File Number:       CC 9021 of 2016

ELKAIM J:

1. On 24 November 2016, Magistrate Boss convicted the appellant of having driven with more than the prescribed concentration of alcohol in his breath in August 2016. He was disqualified from driving for three months and placed on a Good Behaviour Order for the same period.

1. The appellant is unhappy with the punishment. He does not think he should have been convicted. He submits that he should have been dealt with pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT).

1. I have approached the matter in accordance with the principles set out by Penfold J in Lumby v Cooper [2008] ACTSC 53, from paragraph [9].

1. The background facts are as follows. On 29 August 2016, the appellant was driving his Honda motor vehicle along Harrington Circuit in Kambah in the Australian Capital Territory (ACT). He was on his way home from the Burns Club, where he had consumed five full-strength schooners of beer over four hours. He was pulled over for a random breath test. A breath analysis produced a result of 0.051g of alcohol per 210L of breath.

1. The appellant was charged under s 19 of the Road Transport (Alcohol and Drugs) Act 1977 as a repeat offender. The offence carries a maximum penalty of a $1,500 and an automatic disqualification from driving for 12 months. The disqualification can be reduced to a minimum of three months.

1. The appellant was a repeat offender because he had been convicted of a similar offence some 27 years earlier. The appellant is a retired public servant who, since his retirement, has been active in the community as a volunteer.

1. The appellant, in oral submissions, concentrated on two points. Firstly, it was submitted that her Honour had made a mistake in not finding extenuating circumstances, notwithstanding her conclusion that the appellant had an honest belief that he was under the limit. Secondly, it was submitted that her Honour had erred in finding a need for specific deterrence, in particular against the background of the decision of Refshauge J in Roseby v Harman [2014] ACTSC…