Ron Ziaja v Kerri-Anne O'Reilly

[2012] ACTSC 203

RON ZIAJA v KERRI-ANNE O’REILLY               
[2012] ACTSC 203 (18 December 2012)

APPEAL – appeal from Magistrates Court – appeal against sentence – driver’s licence disqualification – Magistrate fell into error where her Honour failed to provide reasons for imposition of higher automatic disqualification period when lesser automatic disqualification period previously deemed appropriate – appeal upheld

APPEAL – appeal from Magistrates Court – appeal against sentence – driver’s licence disqualification – different evidentiary mix enlivening sentencing discretion ­– potential loss of employment – appropriate disqualification period imposed – appeal upheld

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 65 of 2012

Judge:              Burns J
Supreme Court of the ACT

Date:               18 December 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCA 65 of 2012
AUSTRALIAN CAPITAL TERRITORY    )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:RON ZIAJA

Appellant

AND:KERRI-ANNE O’REILLY

Respondent

ORDER

Judge:  Burns J
Date:  18 December 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld.

2. The disqualification period imposed by the Magistrate is set aside and a new disqualification period of three years is imposed. 

3. The disqualification period will commence 18 December 2012 but will be reduced by the period the appellant’s licence was automatically suspended prior to the imposition of the disqualification period by the learned Magistrate.

4. The orders made by the learned Magistrate are otherwise confirmed. 

5. I am prepared to uphold the appeal to a limited extent with respect to this matter for two reasons.

6. Firstly, material has now been put before me on the appeal which was not before the learned Magistrate, and as such there is a different evidentiary mix before me as opposed to the material that was before the Magistrate that enlivens my sentencing discretion.

7. Secondly, it appears to me that the Magistrate fell into error by determining initially that the automatic disqualification period for the offence which was then before her Honour was one of three years.  Her Honour considered, apparently, that that was the appropriate disqualification.  Her Honour had a power to impose a disqualification greater than the disqualification or the automatic disqualification of three years.

8. Having imposed what she understood to be the automatic disqualification of three years she was then advised by the prosecutor that, because of the nature of the offence, the automatic disqualification was one of five years.  Her Honour then imposed, without any reasons being given, the higher automatic disqualification period of five years.

9. As such, I am satisfied that there was an error which infected the sentencing process before the Magistrate.  As such, it comes to me to impose an appropriate disqualification period with respect to this matter.  It appears to me that the sentencing comments made by her Honour were apposite with respect to this offence and this offender.  However, I note that the material before me suggests that it is likely that the appellant may lose his employment if his licence is lost for an extended period of time and if no position is available elsewhere within the Territory and Municipal Services Directorate.  Now, it may well be that that occurs in any event but, bearing in mind all of the circumstances, I propose imposing a disqualification period of three years. 

10. The appeal will be upheld to the extent that the disqualification period imposed by the Magistrate is set aside and a new disqualification period of three years is imposed.  Otherwise the orders made by the learned Magistrate are confirmed.  That three year disqualification period will commence today but will be reduced by the period the appellant’s licence was automatically suspended prior to the imposition of the disqualification period by the learned Magistrate.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:      James Middleton

Date:            18 January 2013

Counsel for the appellant:  Mr Sabharwal
Solicitor for the appellant:  Rachel Bird & Co.
Counsel for the respondent:  Mr Lundy
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  18 December 2012
Date of judgment:  18 December 2012