Smorhun v Devine [No. 2]

[2014] ACTSC 302

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Smorhun v Devine [No. 2]

Citation:

[2014] ACTSC 302

Hearing Date:

14 October 2014

DecisionDate:

14 October 2014

Before:

Penfold J

Decision:

See [21] below.

Category:

Sentence

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be re-sentenced for drink-driving and two other traffic offences after successful Crown appeal – offender disqualified from driving for total of two years and fined total of $2,031.

Legislation Cited:

Magistrates Court Act 1930 (ACT), Divisions 3.10.2, 3.10.3; s 216

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 35(2), 35(3)

Cases Cited:

Mwauluka v Turkich [2013] ACTSC 1

Newham v Cogle [2012] ACTSC 76
Piper v Hall [2013] ACTSC 76

Smorhun v Devine [2014] ACTSC 208

Parties:

Luke Daniel Smorhun (Appellant)

Emily Catherine Devine (Respondent)

Representation:

Counsel

Mr S McLaughlin (Appellant)

Ms K Bills (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)

Aboriginal Legal Service (NSW/ACT) (Respondent)

File Number:

SCA 41 of 2013

1. On 29 August this year I handed down a decision (Smorhun v Devine [2014] ACTSC 208), in a Crown appeal against the sentencing of Emily Devine for three offences. Those offences and sentences were as follows:

(a)first, that as a repeat offender she drove with a level 4 blood alcohol reading (specifically a reading of 0.189), for which she received a fine of $550, a six-month good behaviour order, and a licence disqualification for two years;

(b)second, disobeying a “Left Turn Only” sign, for which she was fined $200; and

(c)thirdly exceeding the speed limit by more than 30 and no more than 45 kph, for which she was fined $250.

1. The decision was that the sentencing had been infected by error on the part of the sentencing Magistrate, and that other sentences were appropriate.  Accordingly, the matter was adjourned for re-sentencing and a Pre-Sentence Report was ordered. 

1. The circumstances of the offences were described in the published judgment, and need not be set out in detail.  In summary, Ms Devine, who was seriously intoxicated, decided to drive her car home from Oktoberfest after having been unable to afford a taxi because her friends had gone home with her key card, and having been frightened by a man who attempted to induce her to walk home with him. She was stopped by police, who first observed her turning onto Northbourne Avenue against a “Left Turn Only” sign, and then followed her travelling along Northbourne Avenue, a road with a speed limit of 60 kph, at an estimated speed of 99 kph.  A breath test produced the blood alcohol reading I have already mentioned. 

1. The fines for the three offences imposed in the Magistrates Court totalled the $1,000 that had been recommended by the panel during the Galambany Court sentencing process.  These compared with the maximum available penalties of fines of $2,200 for each of the three offences, as well as a term of imprisonment for the drink‑driving offence. In the Magistrates Court…