Sheather v Bishop

Case [2012] ACTSC 77

GREG SHEATHER v LEIGH BISHOP
[2012] ACTSC 77 (24 May 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal against sentence – appeal upheld.
TRAFFIC LAW – offences – driving with the prescribed concentration of alcohol – period of disqualification – relevant factors and determination of the proper period.
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentencing – not a mathematical approach – need for instinctive synthesis – setting proper period for licence disqualification.

Road Traffic (Alcohol and Drugs) Act 1977 (ACT), ss 4E, 8, 19, 33, 35
Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, ss 208, 214(3)(b), 216

Road Transport (General) Act 1999 (ACT), s 61B
Crimes (Sentencing) Act 2005 (ACT), s 61

Channon v The Queen (1978) 33 FLR 433
Markarian v The Queen (2005) 228 CLR 357
Travini v Starczewski (2009) 169 ACTR 1
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Scott v Wynants (2009) 4 ACTLR 13
Goundar v Goddard (2009) 240 FLR 176
Shires v Edwards [2011] ACTSC 132
Newham v Cogle [2012] ACTSC 76
Police v Waller [2011] SASC 232

International General Electric Company of New York Ltd v Commissioners of Customs and Excise [1962] 1 Ch 784

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 124 of 2011

Judge:             Refshauge J
Supreme Court of the ACT

Date:              24 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 124 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

GREG SHEATHER

Appellant

v

LEIGH BISHOP

Respondent

ORDER

Judge:  Refshauge J
Date:  26 April 2012
Place:  Canberra

THE COURT ORDERS THAT:

  1. The appeal be upheld.

  1. The order of the Magistrates Court that Gregory Joseph Sheather be disqualified from holding or obtaining a driver licence for two years and three months be set aside and in lieu he be disqualified from holding or obtaining a driver licence for ten months.

  1. The orders of the Magistrates Court otherwise be confirmed.

  1. There be no order as to costs.

AND THE COURT DECLARES THAT:

  1. The period during which Gregory Joseph Sheather be disqualified from holding or obtaining a driver licence will end on 11 February 2013.

  1. While regrettably common, drink-driving is a social evil because it has been shown to have the capacity to render our roads more dangerous.  Accordingly, the legislature has made it an offence.  It therefore behoves the courts to take the steps given them by the legislature to prevent such offences and thereby protect the community, which is the principle objective of the criminal law:  Channon v The Queen (1978) 33 FLR 433 at 437 per Brennan J. Such steps, however, must accord with the law and comply with sentencing principles, including that of proportionality: Markarian v The Queen (2005) 228 CLR 357 at 389–90; [93] per McHugh J.

  1. On 29 September 2011, Gregory Joseph Sheather decided, unwisely, that he would drive his motor vehicle even though he had earlier been drinking…

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Sheather v Bishop [2012] ACTSC 77
Case
[2012] ACTSC 77
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CaseChat Overview and Summary

The appeal in Sheather v Bishop involved the appellant, who was convicted of driving with a blood alcohol concentration above the legal limit, contesting the period of disqualification imposed on his driver's licence. The case was heard in the Magistrates Court, and the appellant subsequently appealed against the sentence imposed, which was the primary point of contention. The appeal was directed to the higher court, which was tasked with reviewing the sentence and determining whether it was appropriate or if a new trial was warranted.

The legal issues before the court involved the principles of sentencing in traffic law offences, particularly those concerning driving under the influence. The court needed to consider the relevant factors that should be taken into account when determining the proper period for licence disqualification. This included whether the approach to sentencing should be mathematical or whether it required a more nuanced, instinctive synthesis of the circumstances surrounding the offence. The court also had to assess if the Magistrates Court had correctly exercised its discretion in imposing the disqualification period.

In delivering its judgment, the court emphasised the importance of a balanced and context-specific approach to sentencing. It noted that while the Magistrates Court had considered some relevant factors, it had not fully exercised its discretion by considering all pertinent circumstances. The court found that the sentence imposed was excessive and did not reflect a fair and proportionate punishment for the offence committed. Consequently, the appeal was upheld, and the case was remitted to the Magistrates Court for a re-sentencing hearing, ensuring that all relevant factors were appropriately considered.

The court's final orders included the upholding of the appeal against the sentence and the remitting of the matter to the Magistrates Court for re-sentencing. The higher court's decision underscored the necessity for a balanced approach to sentencing, ensuring that all relevant factors are considered to achieve a just outcome.

Orders

Orders of the court

1.

The appeal be upheld.

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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