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Sladic v Proud

Sladic v Proud

Case [2013] ACTSC 232 25 November 2013

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JOSO SLADIC v STEVEN MARK PROUD
[2013] ACTSC 232 (25 November 2013)

APPEAL – Appeals from the Magistrates Court – appeal against conviction – appeal on the ground of manifest excess – appeal upheld
CRIMINAL LAW – Particular offences – Driving offences – driving with a prescribed concentration of alcohol – Level 2 concentration – comparison of comparable offences – non-conviction order made
CRIMINAL LAW – Sentencing – consideration of good character – consideration of personal stresses – proof of aggravating features in sentencing – proof of prevalence of an offence

Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT) ss 17, 33, 35, 37
Magistrates Court Act 1930 (ACT) s 216, Pt 3.10, Div 3.10.2
Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4E, 8, 12, 19
Spent Convictions Act 2000 (ACT)

Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the Offence of High Range Prescribed Concentration of Alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305
Balthazaar v The Queen [2012] ACTCA 26
Childs v Credlin (Unreported, Magistrates Court of the Australian Capital Territory, Magistrate Doogan, 10 September 2013)
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Dinsdale v The Queen (2000) 202 CLR 321
Goundar v Goddard (2010) 240 FLR 176
Grooms v Toohey (2012) 7 ACTLR 1
Hargreaves v Chakley (1903) 9 Argus LR 78
Harper v Low [2009] ACTSC 136
Hevesi-Nagy v Sarhan [2013] ACTSC 124
Higgs v The Queen [1999] FCA 1562
Hoang v Garrett [2011] ACTSC 169
House v The King (1936) 55 CLR 499
Islam v The Queen [2013] ACTCA 10
Markarian v The Queen (2005) 228 CLR 357
Minear v Collyer [2008] ACTSC 139
Pavlic v The Queen (1995) 5 Tas R 186
Pfeiffer v The Queen [2009] NSWCCA 145
R v Cooper [2012] ACTCA 9
R v Davis (1980) 2 Cr App R (S) 168
R v Eisenach [2011] ACTCA 2
R v Griggs (1999) 95 FCR 490
R v Jabaltjari (1989) 46 A Crim R 47
R v Meyboom [2012] ACTCA 48
R v Olbrich (1999) 199 CLR 270
R v Petrovic (1984) 10 DLR (4th) 697
R v Ragen (1916) 33 WN(NSW) 106
R v Ryan (1988) 33 A Crim R 288
R vThomson (2000) 49 NSWLR 383
R v Williscroft [1975] VR 292
Sutherland v Luchetti [2013] ACTSC 196
Travini v Starczewski (2010) 169 ACTR 1
Wong v The Queen (2009) 207 CLR 584
Woodlee v Callaghan [2013] ACTSC 60

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 49 of 2013

Judge: Refshauge J
Supreme Court of the ACT

Date: 25 November 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 49 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JOSO SLADIC

Appellant

AND:STEVEN MARK PROUD
Respondent

ORDER

Judge: Refshauge…

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 Sladic v Proud

Details

AGLC: JOSO SLADIC v STEVEN MARK PROUD [2013] ACTSC 232 (25 November 2013)
Case: [2013] ACTSC 232
Decision Date: 25 November 2013

CaseChat Overview and Summary

Joso Sladic appealed against his conviction in the Magistrates Court of the Australian Capital Territory for driving with a prescribed concentration of alcohol in his breath. The appeal was on the ground of manifest excess of jurisdiction. Sladic's plea of guilty led to a conviction, but he sought to have the conviction overturned on the basis that the penalty was manifestly excessive. The appeal was heard by the Supreme Court of the Australian Capital Territory, presided over by Justice Hall.

The court was required to determine whether the penalty imposed by the Magistrates Court was manifestly excessive. It needed to consider the nature and circumstances of the offence, the culpability of the offender, and the principle of proportionality in sentencing. The court also had to assess whether the sentence was outside the range of reasonable penalties for the offence. The appeal hinged on whether the penalty imposed was disproportionate to the offence committed.

The Supreme Court found that the penalty imposed was indeed manifestly excessive. The court highlighted that Sladic was an otherwise law-abiding citizen with no prior convictions and was under considerable personal stress at the time of the offence. The court noted that the prescribed concentration of alcohol in Sladic's breath was only marginally above the legal limit, and that the prevalence of such offences was not significant. It was concluded that a non-conviction order would be more appropriate under the circumstances. Therefore, the appeal was allowed, the conviction was confirmed, but the sentence and orders of the Magistrates Court were set aside.

In lieu of the original sentence, the court ordered that Joso Sladic sign an undertaking to comply with good behaviour obligations for a period of twelve months. This order was intended to address the underlying issues without imposing a criminal conviction, which would have long-term implications for Sladic. The decision underscored the importance of considering the individual circumstances of the offender and the proportionality of the penalty imposed.

Orders

Orders of the court

1. The appeal be allowed.

2. The finding of guilty of Joso Sladic on his plea of guilty to the offence of being a driver of a motor vehicle on a road with, in the relevant period, the prescribed concentration of alcohol in his breath be confirmed.

3. The conviction sentence and orders of the Magistrates Court be set aside.

4. In lieu, Joso Sladic 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

JOSO SLADIC v STEVEN MARK PROUD [2013] ACTSC 232 (25 November 2013)

Most Recent Citation

Clarke v Police [2016] SASC 147

Cases Citing This Decision

R v Connors (No 3) [2022] ACTSC 391
Citation 1

…a (No 3) [2021] ACTSC 149 R v Weldon [2021] ACTSC 348 R v Winters [2022] ACTSC 371 R v KN [2019] ACTSC 305 Saga v Reid [2010] ACTSC 59 Sladic v Proud [2013] ACTSC 232 Thorn v Laidlaw [2005] ACTCA 49 Wong v the Queen [2001] HCA 64; 207 CLR 584…
R v McColl [2022] ACTSC 386
Citation 2

…[2016] ACTSC 327 Siganto v The Queen [1998] HCA 74; 194 CLR 656 Singh v The Queen [2017] ACTCA 17 Sladic v Proud [2013] ACTSC 232 Parties: The Queen ( Crown) Robert Malcolm McColl ( Offender) Representation: Counsel E Wren ( Crown) B Rutzou ( Offender) Solicitors ACT Director of Public Prosecutions ( Crown) Legal…
R v Blackburn (No 1) [2020] ACTSC 373
Citation 3 (Para 1)

…st be said that increasing prevalence, which might aggravate a sentence, must be proved by appropriate evidence (see the discussion in Sladic v Proud [2013] ACTSC 232; 237 A Crim R 1 at [102]-[105]). Nevertheless, the courts can, especially with common offences, draw on their own experience as to prevalence ( Parne…
Vinh v Christensen [2017] ACTSC 389
Citation 4 (Para 1)

…inct from the obligations in ss 35 and 37 which do not have any application to offences which carry a fine only maximum penalty: see Sladic v Proud [2013] ACTSC 232; 237 A Crim R 1 at [53]. The respondent distinguished the position in the ACT from that in New South Wales (NSW) where there is a statutory obligation…
Atmore v Milner [2016] ACTSC 260
Citation 5 (Para 1)

…re is no requirement for the sentencer to explain how it has been taken into account or what, if any, discount is applicable. See also Sladic v Proud [2013] ACTSC 232 at [60]. It must be taken into account and that is only shown by a specific reference to it. In this case, there was not even an indirect reference,…
Clarke v Police [2016] SASC 147
Citation 6 (Para 24)

…al circumstances in each of those cases are materially different to the circumstances of this case. In my view, those cases are of no assistance. [2] [2013] ACTSC 232. [3] [2009] NSWCCA 145.…
Proud v Sladic [2014] ACTCA 26
Citation 7

…Court: Supreme Court Before: Refshauge J Date of Decision: 25 November 2013 Case Title: Sladic v Proud Citation: [2013] ACTSC 232…
Roseby v Harman [2014] ACTSC 125
Citation 8 (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.…

See all citing cases →

Cases Cited

Sutherland v Luchetti [2013] ACTSC 196
Citation 1 (Para 1)

…In Sutherland v Luchetti [2013] ACTSC 196, the appellant had been driving for twenty-four years without conviction. The blood alcohol reading was again Level 3, though just in that range, being 0.081 grams per 210 litres of breath. He had “a moderate odour of intoxicating liquor and watery eyes”. There was a good c…
Hevesi-Nagy v Sarhan [2013] ACTSC 124
Citation 2 (Para 1)

…In Hevesi-Nagy v Sarhan [2013] ACTSC 124, the appellant had been driving for twenty-seven years with one prior conviction “unrelated to an offence of this kind”. The blood alcohol reading was 0.083% which was a low range Level 3 reading. The appellant was of positive good character and had completed a drink-driving…
Woodlee v Callaghan [2013] ACTSC 60
Citation 3 (Para 1)

…In Woodlee v Callaghan [2013] ACTSC 60, however, the appellant did not persuade the court that a non-conviction order should be made. In that case, the appellant had been driving for thirty-five years with no criminal record. The blood alcohol concentration, however, was 0.175%, a Level 4 reading. The appellant ha…
Islam v The Queen [2013] ACTCA 10
Citation 4 (Para 1)

…Eisenach [2011] ACTCA 2 at [38]-[40]; R v Meyboom [2012] ACTCA 48 at [52]-[53]; Balthazaar v The Queen [2012] ACTCA 26 at [64] and Islam v The Queen [2013] ACTCA 10 at [79]-[84].…
R v Cooper [2012] ACTCA 9
Citation 5 (Para 1)

…It was submitted that this principle had been cited with approval in this jurisdiction in Minear v Collyer [2008] ACTSC 139 at [18] and R v Cooper [2012] ACTCA 9 at [49].…
R v Meyboom [2012] ACTCA 48
Citation 6 (Para 1)

…inadequate. This approach has been approved by the Court of Appeal on a number of occasions in R v Eisenach [2011] ACTCA 2 at [38]-[40]; R v Meyboom [2012] ACTCA 48 at [52]-[53]; Balthazaar v The Queen [2012] ACTCA 26 at [64] and Islam v The Queen [2013] ACTCA 10 at [79]-[84].…
Balthazaar v The Queen [2012] ACTCA 26
Citation 7 (Para 1)

…ourt of Appeal on a number of occasions in R v Eisenach [2011] ACTCA 2 at [38]-[40]; R v Meyboom [2012] ACTCA 48 at [52]-[53]; Balthazaar v The Queen [2012] ACTCA 26 at [64] and Islam v The Queen [2013] ACTCA 10 at [79]-[84].…
Grooms v Toohey [2012] ACTSC 28
Citation 8 (Para 1)

…The Statement of Facts was tendered together with Mr Sladic’s prior criminal record. These do not appear to have been marked as exhibits. See Grooms v Toohey (2012) 7 ACTLR 1 at 6; [24].…
Van Dam Hoang v Michael William Garrett [2011] ACTSC 169
Citation 9 (Para 1)

…Reference was made in the submissions made on behalf of Mr Sladic to the decision of Burns J in Hoang v Garrett [2011] ACTSC 169 at [9] where his Honour commented that the learned Sentencing Magistrate did not “specify whether and in what way he took into account the appellant’s plea of guilty”.…
Cooper v Corvisy (No 2) [2010] ACTSC 166
Citation 10 (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.…
Goundar v Goddard [2010] ACTSC 56
Citation 11 (Para 1)

…, the Court had character references which were accepted and which showed positive good character during that period. As set out in Goundar v Goddard (2010) 240 FLR 176 at 184; [45]-[47], this was not merely an absence of offences or other matters prejudicial to his character, but positive conduct and contributions t…
Jason Harper v Cameron Paul Low & Joel Wood [2009] ACTSC 136
Citation 12 (Para 1)

…Thus, this is not a case, like Harper v Low [2009] ACTSC 136 at [37], where, again, there was no mention in the sentencing remarks or during the sentencing hearing of the plea of guilty.…
Travini v Starczewski [2009] ACTSC 123
Citation 13

…) 33 WN(NSW) 106 R v Ryan (1988) 33 A Crim R 288 R v Thomson (2000) 49 NSWLR 383 R v Williscroft [1975] VR 292 Sutherland v Luchetti [2013] ACTSC 196 Travini v Starczewski (2010) 169 ACTR 1 Wong v The Queen (2009) 207 CLR 584 Woodlee v Callaghan [2013] ACTSC 60…
Pfeiffer v R [2009] NSWCCA 145
Citation 14 (Para 1)

…ons does not mean that a person is not of good character. As McClellan CJ at CL, with whom Simpson and Buddin JJ agreed, said in Pfeiffer v The Queen [2009] NSWCCA 145 at [18]:…
Benjamin Minear v Luke James Collyer [2008] ACTSC 139
Citation 15 (Para 1)

…It was submitted that this principle had been cited with approval in this jurisdiction in Minear v Collyer [2008] ACTSC 139 at [18] and R v Cooper [2012] ACTCA 9 at [49].…
Markarian v The Queen [2005] HCA 25
Citation 16 (Para 1)

…sion of the offence. The maximum penalty is a fine. That is relevant to determining the seriousness of the offence, as noted in Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31]. Nevertheless, it is a very common offence and, as properly submitted by the prosecution, directed at the safety of the community.…
Re Attorney-General's Application (No 3 of 2002) (NSW) [2004] NSWCCA 303
Citation 17 (Para 1)

…f High Range Prescribed Concentration of Alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 at 340; [146]. I do not consider that this factor negates all the other mitigating matters.…
Wong v The Queen [2001] HCA 64
Citation 18 (Para 1)

…ringe the requirements of the High Court (absent statutory modification) that mandates sentencing to be a process of instinctive synthesis, as in Wong v The Queen (2009) 207 CLR 584 at 611; [75].…
Dinsdale v The Queen [2000] HCA 54
Citation 19 (Para 1)

…The failure to take a factor adequately into account, or to accord it due weight is, as Gleeson CJ and Hayne J pointed out in Dinsdale v The Queen (2000) 202 CLR 321 at 325; [5], properly understood as a particular of the ground that the sentence was manifestly excessive or manifestly inadequate. This approach has be…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 20 (Para 1)

…ed that the learned Chief Magistrate failed to apply the principles as to a plea of guilty set out by the NSW Court of Criminal Appeal in R v Thomson (2000) 49 NSWLR 383 at 395; [52], where Spigelman CJ said:…
The Queen v Griggs [1999] FCA 1573
Citation 21 (Para 1)

…ggravating feature in sentencing, are not to be mere rhetoric. Courts are, of course, entitled to take prevalence into account as noted in R v Griggs (1999) 95 FCR 490 at 493; [12]; R v Williscroft [1975] VR 292 at 299.…
Higgs v The Queen [1999] FCA 1562
Citation 22 (Para 1)

…rts have held that the ordinary consequence of a finding of guilt is the recording of a conviction: Balthazaar v The Queen at [53]; Higgs v The Queen [1999] FCA 1562 at [3]. That, of course, does not mean that a non-conviction order cannot be made; that would render s 17 of the Crimes (Sentencing) Act impotent.…
R v Olbrich [1999] HCA 54
Citation 23 (Para 1)

…8 at 79; R v Ragen (1916) 33 WN(NSW) 106. It is generally required, however, that aggravating features be proved beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270 at 281; [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ), 293; [57] (Kirby J).…
House v R [1936] HCA 40
Citation 24 (Para 1)

…take into account is, of course, an error of law. That amounts to a failure to take account of a relevant consideration as stated in House v The King (1936) 55 CLR 499 at 504-5. That does, however, depend on an obligation to take the matter into account and requires a failure to do so, not merely a failure to do so…
House v The King 63 WN 176
Citation 25 (Para 1)

…rt is obliged to take into account is, of course, an error of law. That amounts to a failure to take account of a relevant consideration as stated in House v The King (1936) 55 CLR 499 at 504-5. That does, however, depend on an obligation to take the matter into account and requires a failure to do so, not merely a failur…
(1984) 10 DLR (4th) 697 (1984) 10 DLR (4th) 697
Citation 26 (Para 1)

…uld be established by reliable data subjected to rigorous analysis”. See also R v Jabaltjari (1989) 46 A Crim R 47 at 63 (Asche CJ); R v Petrovic (1984) 10 DLR (4th) 697 at 710. I certify that the preceding one-hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Jus…

Legislation Cited

Crimes (Sentencing) Act 2005 (ACT) 17, 33, 35, 37
5 mentions (from Para 1)
Road Transport (Alcohol and Drugs) Act 1977 (ACT) 12, 19, 4E, 8
5 mentions (from Para 1)
Magistrates Court Act 1930 (ACT) 216
2 mentions (from Para 1)
Spent Convictions Act 2000 (ACT)
2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention (from Para 1)
Crimes Act 1914 (Cth)
1 mention
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
1 mention (from Para 1)