Smith v Stivala - [2018] ACTSC 309

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Smith v Stivala
Citation:	[2018] ACTSC 309
Hearing Date:	23 May 2018
DecisionDate:	8 November 2018
Before:	Burns J
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – Magistrates Court Appeal – licence disqualifications – whether the Magistrate erred in proceeding under s 61 of the Crimes (Sentencing) Act – whether where an aspect of an offender’s punishment is an automatic consequence of conviction, any circumstance of aggravation must be alleged in the charge – Magistrate had no power to make a disqualification order of the same length as the automatic disqualification period – ss 29 and 30 of the Crimes (Sentencing) Act 2005 (ACT) – cannot apply to automatic disqualification periods that take effect by force of statute – no issue of totality can arise – whether the Magistrate erred in making, or alternatively continuing, the order under s 65 of the Road Transport (General) Act 1999 (ACT) – no power available to the Magistrate to review the order imposing the indefinite disqualification – whether the total period of disqualification from holding or obtaining a licence was manifestly excessive in all of the circumstances – ample evidence upon which the Magistrate could conclude that it was necessary in the public interest to make the indefinite disqualification order – appeal dismissed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 16, 18(5), 29, 30, 31, 58(6), 61 Magistrates Court Act 1930 (ACT) s 208(1)(d) Road Transport (General) Act 1999 (ACT) ss 61AA, 63, 65, 68, 69 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 8(2)
Cases Cited:	Beath and McCurley [2018] ACTCA 48 Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157 Pearce v The Queen [1998] HCA 57; 194 CLR 610 The Queen v Meaton (1986) 160 CLR 359
Parties:	Johnathon Smith (Appellant) Ian Anthony Stivala (Respondent)
Representation:	Counsel Mr M Toole (Appellant) Mr M Howe (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 8 of 2018
Decision under appeal:	Court/Tribunal: Magistrates Court Before: Magistrate Boss Date of Decision: 29 January 2018 Case Title: The Queen v Johnathon Smith Court File Numbers: CC2016/10953; CC2016/10954

BURNS J:

On or about 20 October 2016 the appellant, Johnathon Smith was charged with two offences in the following form:

(a)That he in the Australian Capital Territory on 22 September, 2016, drove a motor vehicle on a road in a way that menaced another person, namely, Brian Frederick Summers, knowing that person might be menaced (CC2016/10953).
(b)That he in the Australian Capital Territory on 22 September, 2016, drove a motor vehicle on a road in a way that menaced another person, namely, Timothy Chaseling, knowing that person might be menaced (CC2016/10954).

Each such charge alleged an offence contrary to s 8(2) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Safety Act). That section provides:
(2) A person must not drive a motor vehicle on a road or road related…

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 Smith v Stivala

Details

AGLC: Smith v Stivala [2018] ACTSC 309
Case: [2018] ACTSC 309
Decision Date: 8 November 2018

CaseChat Overview and Summary

In the matter of Smith v Stivala, the respondent appealed against a decision of the Magistrates Court of the Australian Capital Territory, which had imposed a disqualification from holding or obtaining a driver’s licence for an indefinite period. The appeal centred around the legality of the disqualification order and whether the Magistrate had the authority to impose such a penalty. The appellant argued that the Magistrate erred in making the order under section 65 of the Road Transport (General) Act 1999 (ACT) and in proceeding under section 61 of the Crimes (Sentencing) Act 2005 (ACT).

The primary legal issue before the court was whether the Magistrate had the power to make a disqualification order of the same length as the automatic disqualification period imposed by statute. The court had to determine if any circumstance of aggravation must be alleged in the charge when an aspect of the offender’s punishment is an automatic consequence of conviction. Additionally, the court considered whether the Magistrate erred in making, or alternatively continuing, the order under section 65 of the Road Transport (General) Act 1999 (ACT), and if the total period of disqualification from holding or obtaining a licence was manifestly excessive in all of the circumstances.

The court found that the Magistrate did not have the power to make a disqualification order of the same length as the automatic disqualification period because sections 29 and 30 of the Crimes (Sentencing) Act 2005 (ACT) could not apply to automatic disqualification periods that took effect by force of statute. The court also held that no issue of totality could arise. Regarding the order under section 65 of the Road Transport (General) Act 1999 (ACT), the court found no power was available to the Magistrate to review the order imposing the indefinite disqualification. The court concluded that there was ample evidence upon which the Magistrate could conclude that it was necessary in the public interest to make the indefinite disqualification order.

The appeal was dismissed, and the original decision of the Magistrates Court was upheld.

Orders

Orders of the court

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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