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Roseby v Harman

Roseby v Harman

Case [2014] ACTSC 125 5 June 2014

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SAMUEL DUNCAN ROSEBY v SARAH HARMAN
[2014] ACTSC 125 (5 June 2014)

APPEAL AND NEW TRIAL – In general and right of appeal – Whether sentence manifestly excessive – Whether Magistrate erred in convicting offender – Drink driving – First offence – Appeal upheld

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT), ss 17, 32, 35, 37
Director of Public Prosecutions Act 1990 (ACT), s 6(1)(c))
Legislation Act 2001 (ACT), s 133
Magistrates Court Act 1930 (ACT), Div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4, 8, 12, 19, 26

Baverstock v Abbott [2005] ACTSC 24
Clearihan v East (Unreported, ACTSC, 2 August 1989, Miles CJ)
Cobiac v Liddy (1969) 119 CLR 257
Commissioner for Taxation v Baffsky (2002) 192 ALR 92
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Davis v Conroy [2005] ACTSC 8
Dixon v David [2012] ACTSC 42
Gordon v Reddin [2013] ACTSC 87
Hevesi-Nagy v Sarhan [2013] ACTSC 124
Hoang v Garrett [2011] ACTSC 169
Lumby v Cooper [2008] ACTSC 53
Markarian v The Queen (2005) 228 CLR 357
McKellar v Woolcock [2013] ACTSC 225
McLeod v Evans [2013] ACTSC 277
Morris v East (1988) 83 ACTR 1
O’Toole v Scott [1965] AC 939
Re Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999(NSW) (No 3 of 2002) (2004) 147 A Crim R 546
R v CV [2013] ACTCA 22
R v Elbadar [2012] NSWSC 1492
Sladic v Proud [2013] ACTSC 232
Sutherland v Luchetti [2013] ACTSC 196
Travini v Starczewski (2009) 235 FLR 14
Wong v The Queen (2001) 207 CLR 584
Woodlee v Callaghan [2013] ACTSC 60

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 104 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 5 June 2014

IN THE SUPREME COURT OF THE       )
  )          No. SCA 104 of 2013
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SAMUEL DUNCAN ROSEBY
Appellant

AND:SARAH HARMAN
Respondent

ORDER

Judge:  Refshauge J
Date:  5 June 2014
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The conviction and sentence entered and imposed by the Magistrates Court on 5 November 2013 be set aside.

The offence that Samuel Duncan Roseby, having been a driver of a motor vehicle on a road, had, within two hours of driving, the prescribed concentration of alcohol in his breath be found proved.

Samuel Duncan Roseby be required, under s 17 of the Crimes (Sentencing) Act 2005 (ACT), to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months from today.

On 23 August 2013, the appellant, Samuel Duncan Roseby, was, after driving a motor vehicle, subjected to breath analysis under the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act), which showed a concentration of 0.094 grams of alcohol in 210 litres…

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 Roseby v Harman

Details

AGLC: Roseby v Harman [2014] ACTSC 125
Case: [2014] ACTSC 125
Decision Date: 5 June 2014

CaseChat Overview and Summary

Roseby v Harman involved an appeal against a sentence handed down by the Magistrates Court of the Australian Capital Territory. The appellant, Samuel Duncan Roseby, was convicted of driving with an alcohol concentration above the legal limit within two hours of driving. The matter was brought before the Court of Appeal to determine whether the sentence imposed was manifestly excessive and whether the Magistrates Court erred in convicting the appellant. The Court of Appeal was also asked to consider if the Magistrates Court failed to take into account relevant mitigating factors.

The primary legal issues were whether the sentence was manifestly excessive and if the Magistrates Court erred in convicting the appellant. The appellant argued that the sentence was excessive and that the Magistrates Court did not appropriately consider the mitigating factors. The Crown contended that the sentence was appropriate and that the Magistrates Court had correctly applied the law in convicting the appellant. The Court of Appeal needed to examine the sentence's proportionality and the Magistrates Court's consideration of mitigating factors.

The Court of Appeal found that the sentence imposed by the Magistrates Court was manifestly excessive. The court considered the nature of the offence, which was the appellant's first drink driving offence, and the appellant's otherwise good character. The Court of Appeal determined that the Magistrates Court had failed to adequately consider the mitigating factors and that the sentence imposed was disproportionate to the offence. The Court of Appeal also found that the Magistrates Court had erred in convicting the appellant. The appeal was upheld, and the conviction and sentence were set aside. The Court of Appeal ordered that the appellant be required to sign an undertaking to comply with good behaviour obligations for a period of twelve months.

Orders

Orders of the court

1. The appeal be upheld.

2. The conviction and sentence entered and imposed by the Magistrates Court on 5 November 2013 be set aside.

3. The offence that Samuel Duncan Roseby, having been a driver of a motor vehicle on a road, had, within two hours of driving, the prescribed concentration of alcohol in his breath be found proved.

4. Samuel Duncan Roseby be required, under s 17 of the Crimes (Sentencing) Act 2005 (ACT), to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months from today.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Roseby v Harman [2014] ACTSC 125

Most Recent Citation

Tegan Vavoulas v Adele Eileen Austin [2014] ACTSC 282

Cases citing this decision · 11 of 11 shown

Robens v Sproule
[2021] ACTMC 8 Para 1

…offending. I have some reservations about confining that assessment in that way. I do not see the reasoning adopted by Refshauge J in Roseby v Harman [2014] ACTSC 125 at [55] or by Burns J in Naoumidis v Robens [2018] ACTSC 365 requiring such a narrow approach. Further, proportionality is a relative concept requiri…
Damian Watson v Jeremy Stiles
[2021] ACTMC 2 Para 1

…Refshauge J spoke similarly of the disproportionate consequences of a conviction as a relevant consideration in Roseby v Harman [2014] ACTSC 125 at [55].…
Wells v Mount
[2020] ACTSC 333

…R v Tsiaris [1996] 1 VR 398 R v Verdins [2007] VSCA 102; 16 VR 269 Roseby v Harman [2014] ACTSC 125 Smith v Western Australia [2014] HCA 3; 250 CLR 473 Stewart v R [2012] NSWCCA 183 Thammavongsa v R [2015] NSWCCA 107; 251 A Crim R 342 Veen v The Queen (No 2) (1988) 164 CLR 465 Wong v The Queen [2001] HCA 64; 207 CL…
Simpson v Oliveira
[2018] ACTMC 28

…[2014] ACTCA 26 R v Howell [2018] ACTSC 155 R v Leu [2009] ACTSC 5 R v Mills [2015] ACTSC 419 R v Ross [2011] ACTSC 211 Roseby v Harman [2014] ACTSC 125 Stark v Plant [2010] WASCA 7 Parties: Daniel Simpson (Informant) Julia Douglas Oliveira (Defendant) Representation: Ms P Burgoyne-Scutts (Informant) Mr A Doig (Def…
Richards v Burnes
[2017] ACTSC 117 Para 1

…er 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 125, where his Honour dealt with very similar remarks made by the same Magistrate.…
Mearns v Neill
[2016] ACTSC 36

…59 Munda v Western Australia (2013) 249 CLR 600 Proud v Sladic [2014] ACTCA 26 R v Ang [2014] ACTCA 17 R v Olbrich (1999) 199 CLR 270 Roseby v Harman [2014] ACTSC 125 Talukder v Dunbar [2009] ACTSC 42 The Queen v CV [2013] ACTCA 22 Tuckey v Ede [2010] ACTSC 95…
McElholum v Hughes
[2015] ACTSC 78 Para 1

…I have recently set out some principles relating to non-conviction orders in Roseby v Harman [2014] ACTSC 125 at [39]-[49]. I rely on what I there said.…
Pasa v Bell
[2014] ACTSC 303 Para 18

…] ACTCA 26 at [53]. The failure to record a conviction is an exceptional outcome : Stark v Plant [2010] WASCA 74 at [18]. [46] In Roseby v Harman [2014] ACTSC 125, after discussing the authorities, Refshauge J said that it is unnecessary to identify an exceptional consideration before a sentencing court can proceed…
Hambrook v Duke
[2014] ACTSC 203 Para 1

…Recently I have considered the relevance of such factors in Roseby v Harman [2014] ACTSC 125 at [51]-[52] where I said…
Proud v Sladic
[2014] ACTCA 26

…Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 R v Ang [2014] ACTCA 17 RLG v Donnelly [2012] WASC 230 Roseby v Harman [2014] ACTSC 125 Stark v Plant [2010] WASCA 74…
Tegan Vavoulas v Adele Eileen Austin
[2014] ACTSC 282 Para 1

…ntly set out some principles relating to orders under s 17 of the Crimes (Sentencing) Act , namely non-conviction orders, recently in Roseby v Harman [2014] ACTSC 125 at [39]-[49]. I rely on what I there said.…

View all 11 citing cases →

Cases cited in this decision · 21 of 21 shown

Wendy McLeod v Lucy Claire Evans
[2013] ACTSC 277 Para 1

…free driving will be very relevant factors but may not be sufficient, in themselves, to justify the exercise of the discretion. See McLeod v Evans [2013] ACTSC 277.…
Sladic v Proud
[2013] ACTSC 232 Para 1

…[2005] ACTSC 24 and Travini v Starczewski . Conviction free passage of time, however, may in an appropriate case remove that problem: Sladic v Proud [2013] ACTSC 232.…
McKellar v Woolcock
[2013] ACTSC 225 Para 1

…discretion under s 17 of the Sentencing Act . So much is clear from what Moore J said in Davis v Conroy [2005] ACTSC 8. See also McKellar v Woolcock [2013] ACTSC 225 at [23].…
Sutherland v Luchetti
[2013] ACTSC 196 Para 1

…he had good character and had been driving for twenty-four years with no prior convictions, a non-conviction order was made in Sutherland v Luchetti [2013] ACTSC 196.…
Hevesi-Nagy v Sarhan
[2013] ACTSC 124 Para 1

…the requirement for general deterrence in relation to such offences is not necessarily of itself a bar to making such an order: Hevesi-Nagy v Sarhan [2013] ACTSC 124 at [3]. Similarly, it would appear that there is no general proposition that an offender with a prescribed concentration of alcohol at Level 4 could…
R v CV
[2013] ACTCA 22 Para 1

…[2013] ACTSC 225) or making the consequences of a conviction disproportionate ( Clearihan v East (Unreported, ACTSC, 2 August 1989, Miles CJ); R v CV [2013] ACTCA 22). These are, of course, not factors that, in themselves have to be present, for the discretion is a wide one and the court must at least take into ac…
Gordon v Reddin
[2013] ACTSC 87 Para 1

…ters set out in s 17(2) of the Sentencing Act are concerned, the court is required to consider those factors, as noted by Nield AJ in Gordon v Reddin [2013] ACTSC 87 at [15]. See also Travini v Starczewski (2009) 235 FLR 14 at 28; [94].…
Woodlee v Callaghan
[2013] ACTSC 60 Para 1

…o general proposition that an offender with a prescribed concentration of alcohol at Level 4 could never be given such an order ( Woodlee v Callaghan [2013] ACTSC 60 at [10]), though these occasions are likely to be rare ( Gordon v Reddin at [16]).…
R v Elbadar
[2012] NSWSC 1492 Para 1

…tted the instant offence. Indeed, there are circumstances where specific deterrence is not relevant as an issue at all. See, for example, R v Elbadar [2012] NSWSC 1492 at [28].…
Dixon v David
[2012] ACTSC 42 Para 1

…t at risk and where the offender needed his licence to support an elderly relative and for his employment, was granted such an order in Dixon v David [2012] ACTSC 42.…
Van Dam Hoang v Michael William Garrett
[2011] ACTSC 169 Para 1

…in his blood or breath, and who had been driving for just over twenty years with no previous convictions was granted such an order in Hoang v Garrett [2011] ACTSC 169.…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.…
Travini v Starczewski
[2009] ACTSC 123 Para 1

…tencing Act are concerned, the court is required to consider those factors, as noted by Nield AJ in Gordon v Reddin [2013] ACTSC 87 at [15]. See also Travini v Starczewski (2009) 235 FLR 14 at 28; [94].…
Lumby v Cooper
[2008] ACTSC 53 Para 1

…It is also clear from cases such as Lumby v Cooper [2008] ACTSC 53 at [31] that the making of an order under s 17 of the Sentencing Act is not limited to situations where, for example, the making of a conviction will affect the career prospects of the offender. It has a much wider reach than that.…
Markarian v The Queen
[2005] HCA 25 Para 1

…ntencing outcome. It is clear from what the High Court has said in cases such as Wong v The Queen (2001) 207 CLR 584 at 611 and Markarian v The Queen (2005) 228 CLR 357 at 375 that the process is one of instinctive synthesis of all the relevant factors including those mandated by the section.…
Paul James Baverstock v Barry Edward Abbott
[2005] ACTSC 24 Para 1

…s that this court have relied on to determine that the discretion should not be exercised include prior traffic convictions as in Baverstock v Abbott [2005] ACTSC 24 and Travini v Starczewski . Conviction free passage of time, however, may in an appropriate case remove that problem: Sladic v Proud [2013] ACTSC 232…
Davis v Conroy
[2005] ACTSC 8 Para 1

…rt has taken into account when exercising the discretion under s 17 of the Sentencing Act . So much is clear from what Moore J said in Davis v Conroy [2005] ACTSC 8. See also McKellar v Woolcock [2013] ACTSC 225 at [23].…
Wong v The Queen
[2001] HCA 64

…A 22 R v Elbadar [2012] NSWSC 1492 Sladic v Proud [2013] ACTSC 232 Sutherland v Luchetti [2013] ACTSC 196 Travini v Starczewski (2009) 235 FLR 14 Wong v The Queen (2001) 207 CLR 584 Woodlee v Callaghan [2013] ACTSC 60…
Commissioner of Taxation v Baffsky
[2001] NSWCCA 332 Para 1

…That is important because there has been a suggestion by Spigelman CJ in Commissioner for Taxation v Baffsky (2002) 192 ALR 92 that there may be a difference in approach between what Windeyer J said and the majority in Cobiac v Liddy . Spigelman CJ commented (at 99; [24):…
Cobiac v Liddy
[1969] HCA 26

…Baverstock v Abbott [2005] ACTSC 24 Clearihan v East (Unreported, ACTSC, 2 August 1989, Miles CJ) Cobiac v Liddy (1969) 119 CLR 257 Commissioner for Taxation v Baffsky (2002) 192 ALR 92 Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 Davis v Conroy [2005] ACTSC 8 Dixon v David [2012] ACTSC 42 Gordon v Reddin [2013] ACTSC 87…
[1965] AC 939
[1965] AC 939 Para 1

…t; they are commenced by an informant, usually a police officer, in his or her own name, as pointed out by the Privy Council in O’Toole v Scott [1965] AC 939 at 958, though the Director of Public Prosecutions has power to institute such proceedings ( Director of Public Prosecutions Act 1990 (ACT), s 6(1)(c)) and…

Legislation cited in this decision · 7

Road Transport (Alcohol and Drugs) Act 1977 (ACT)
12, 19, 26, 4, 8 6 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
17, 32, 35, 37 5 mentions (from Para 1)
Legislation Act 2001 (ACT)
133 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Director of Public Prosecutions Act 1990 (ACT)
6(1)(c)) 1 mention (from Para 1)
Magistrates Court Act 1930 (ACT)
1 mention (from Para 1)