HECTOR SCOTT v MATTHEW JAMES WYNANTS [2009] ACTSC 62 (26 May 2009)
CRIMINAL LAW - driving offences - sentencing TRAFFIC LAW - offences - alcohol and drug related offences - disqualification of licence - high level PCA - repeat offender - NSW guideline judgement MAGISTRATES’ COURT - appeal from - period of disqualification manifestly excessive - cross-appeal – disqualification only penalty manifestly inadequate - error in not imposing penalty over and above the good behaviour order
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 90 of 2008
Judge: Higgins CJ Supreme Court of the ACT
Date: 26 May 2009
IN THE SUPREME COURT OF THE) ) No. SCA 90 of 2008 AUSTRALIAN CAPITAL TERRITORY)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:HECTOR SCOTT
Appellant
AND:MATTHEW JAMES WYNANTS
Respondent
ORDER
Judge: Higgins CJ Date: 26 May 2009 Place: Canberra
THE COURT ORDERS THAT:
Both the appeal and the cross-appeal be upheld and the parties be heard on the penalty to be substituted.
The appellant was, on 9 October 2007, charged with an offence against s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the RT (A & D) Act). That subsection provides:
(1)A person who -
(a)has, been the driver of a motor vehicle in a public place, and
(b)has within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;
commits an offence punishable, on conviction, by a penalty ascertained in accordance with section 26.
Some little time before 7.45 am on Tuesday 9 October 2007, the appellant had been riding a motorcycle, Western Australian registration UG4024, in the vicinity of the intersection of Isabella Drive and Coyne Street in Fadden in the Australian Capital Territory. The intersection was controlled by a roundabout. At the roundabout the motor cycle collided with a Suzuki Station Wagon ACT registration YEI-63B. The motor cycle fell and slid, bursting into flames. The appellant was injured as a result and taken to Canberra Hospital. At 8.55 am, a blood sample was taken. The result of the analysis of it was 0.179 grams of ethyl alcohol per 100 millilitres of blood.
The appellant had no memory of the collision. Other witnesses…
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
AGLC
Scott v Wynants [2009] ACTSC 62
Case
[2009] ACTSC 62
Decision Date
CaseChat Overview and Summary
Scott appeals against a conviction and sentence for driving with a high level of PCA and Wynants cross-appeals against the sentence. The issues before the court were whether the period of disqualification was manifestly excessive and whether the disqualification was the only penalty imposed, making it manifestly inadequate. The court considered the NSW guideline judgement on sentencing for alcohol and drug related offences and determined that the disqualification period was manifestly excessive. The court also found that the disqualification was the only penalty imposed, making it manifestly inadequate. The court held that there was an error in not imposing a penalty over and above the good behaviour order. Both the appeal and the cross-appeal were upheld and the parties were to be heard on the penalty to be substituted.
Orders
Orders of the court
Both the appeal and the cross-appeal be upheld and the parties be heard on the penalty to be substituted.