Senderowski v Mothersole

[2013] ACTSC 217

ROBERT SENDEROWSKI v DARREN STEPHEN MOTHERSOLE
 [2013] ACTSC 217 (10 September 2013)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal still on foot despite informal indication of withdrawal – sentence for Level 4 drink-driving offence manifestly excessive – Magistrate erred in setting licence disqualification period by deducting from default disqualification period – appellant re-sentenced. 

Mwauluka v Turkich [2013] ACTSC 1
Newham v Cogle [2012] ACTSC 76
Piper v Hall [2013] ACTSC 207

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 126 of 2011

Judge:             Penfold J
Supreme Court of the ACT

Date:              10 September 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 126 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

ROBERT SENDEROWSKI

Appellant

AND:

DARREN STEPHEN MOTHERSOLE

Respondent

ORDER

Judge:  Penfold J
Date:  10 September 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld to the extent necessary to set aside the four year disqualification period (in relation to the Level 4 PCA offence) imposed by the sentencing Magistrate.

1. A new disqualification period of 12 months is imposed starting from 10 September 2013 and ending on 9 September 2014.

1. The six-month term of imprisonment and the 12 months concurrent disqualification on the drive while suspended offence are confirmed but have already been served.

Introduction

1. Robert Senderowski was summonsed to appear in court on a charge that on 5 October 2011 being a repeat offender and also being a special driver, he drove a motor vehicle with Level 4 alcohol on his breath.  Mr Senderowski was a “special driver” because he was at the time disqualified from driving.  He was also charged with driving while disqualified.

1. On 8 December 2011 Mr Senderowski was convicted and sentenced to imprisonment for six months, to be served in full-time custody from that date.  He was also disqualified from holding or obtaining a driver’s licence for four years, that period to begin after the end of the disqualification that had been ordered on an earlier charge and was to expire on 19 December 2011.

The appeal

1. On 29 December 2011, Mr Senderowski filed a notice of appeal that he had prepared himself, which specified “severity of sentence” as his ground of appeal, noting also that the sentence was too harsh and that he would have preferred weekend detention.

1. The appeal was listed for hearing on 15 March 2012, but the Court Registry received an informal indication on behalf of Mr Senderowski that he wished to withdraw his appeal, and it seems that the listed hearing was removed from the court lists.

1. In February 2013, after Mr Senderowski acquired a new solicitor, the appeal came before the Deputy Registrar and in due course it was docketed to me.

1. Despite the indication of a wish to withdraw the appeal, no formal notice of withdrawal was ever filed, and it was unclear whether the…