Rutzou v Campbell - [2024] ACTSC 217

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Rutzou v Campbell
Citation:	[2024] ACTSC 217
Hearing Date:	19 June 2024
Decision Date:	10 July 2024
Before:	Baker J
Decision:	(1) The appeal is dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence imposed by the Magistrates Court – alleged manifest excess and specific error – condition imposed in good behaviour order prohibiting the appellant from driving except for limited purposes – prosecutor conceded the condition was an order made contrary to law – scope of s 13(4)(g) Crimes (Sentencing) Act 2005 (ACT) considered – concession not accepted - condition made by the Magistrate not contrary to law or manifestly excessive – appeal dismissed.
Legislation Cited:	Crimes Act 1914 (Cth), ss 20(1), 20AB Crimes (Sentencing) Act 2005 (ACT), ss 13, 17(2), 18 Crimes (Sentence Administration) Act 2005 (ACT), ss 85, 86 Magistrates Court Act 1930 (ACT), s 218(1) Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19(1) Road Transport (Driver Licensing) Act1999 (ACT), s 32(1) Road Transport (Driver Licensing) Regulation 2000 (ACT), s 45
Cases Cited:	Anthony Hordern & Sons v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Commonwealth Director of Public Prosecutions v Evans [2022] FCAFC 182; 294 FCR 512 Hawker v R [2020] ACTCA 40 Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 Miller v Tighe [2017] ACTSC 185; 322 FLR 299 Porter v The Queen [2024] ACTCA 9 R v Pham [2015] HCA 39; 256 CLR 550 Re Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305; 147 A Crim R 546
Parties:	Sophie Rajander Rutzou ( Appellant) Donald Campbell ( Respondent)
Representation:	Counsel A Byrnes ( Appellant) K McCann ( Respondent)
Solicitors Andrew Byrnes Law Group ACT Director of Public Prosecutions
File Number:	SCA 17 of 2024
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Burt Date of Decision: 21 February 2024 Case Title: The Police v Sophie Rutzou Court File Number: CAN 9632 of 2023

BAKER J:

Introduction

1․The appellant, Sophie Rutzou, pleaded guilty in the Magistrates Court to a charge of driving with a prescribed concentration of alcohol in breath as a first offender, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RT(AD) Act).
2․On 21 February 2024, the Magistrate sentenced the appellant to a good behaviour order for a period of 24 months, without conviction, pursuant to s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The good behaviour order included a condition which prohibited the appellant from driving, except for limited purposes, for a period of six months (the driving condition).
3․By way of a Notice of Appeal filed on 19 March 2024, the appellant appeals from this sentence. The specific grounds of the appeal are as follows:
(a)That the sentence given…

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 Rutzou v Campbell

Details

AGLC: Rutzou v Campbell [2024] ACTSC 217
Case: [2024] ACTSC 217
Decision Date: 10 July 2024

CaseChat Overview and Summary

In the case of Rutzou v Campbell, the appellant, Rutzou, appealed against a sentence imposed by the Magistrates Court of the Australian Capital Territory. The sentence included a condition in a good behaviour order that prohibited Rutzou from driving except for limited purposes. The prosecutor conceded that the condition was an order made contrary to law. The primary legal issue before the court was whether the condition imposed by the Magistrate was contrary to law or manifestly excessive, and if not, whether the appeal should be dismissed.

The court considered the scope of section 13(4)(g) of the Crimes (Sentencing) Act 2005 (ACT), which outlines the circumstances in which a court may make a good behaviour order. The court examined whether the condition imposed was within the legislative framework provided by the Act. Despite the prosecutor's concession that the condition was an order made contrary to law, the court found that the condition imposed by the Magistrate did not contravene the Act and was not manifestly excessive. The court held that the Magistrate had correctly exercised their discretion in imposing the condition as part of the good behaviour order.

Accordingly, the appeal was dismissed, and the sentence and condition imposed by the Magistrates Court were upheld. The court found no basis for setting aside the sentence on the grounds of manifest excess or specific error. The decision underscores the importance of ensuring that conditions imposed in good behaviour orders are both lawful and proportionate to the offence and the offender's circumstances.

Orders

Orders of the court

(1) The appeal is 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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