Stoehr v Meyer - [2016] ACTSC 144

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Stoehr v Meyer
Citation:	[2016] ACTSC 144
Hearing Dates:	24 May and 2 June 2016
DecisionDate:	2 June 2016
Before:	Murrell CJ
Decision:	Appeal upheld. Re-sentenced to a disqualification period of two years.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal from the Magistrates Court – appeal against sentence – appeal against licence disqualification period – alleged error of law – “default” period of disqualification erroneous starting point – Tindall v Spalding (2014) 10 ACTLR 198 and NSW Guideline Judgment (Re Attorney General (NSW) (No 3 of 2002) [2004] 61 NSWLR 305) not followed – Burow v Hoyer (2015) 292 FLR 325 followed – appeal upheld CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re‑sentence – drive with prescribed concentration of alcohol in breath – determination of disqualification period – repeat offender – reduction of disqualification period
Legislation Cited:	Crimes Legislation Amendment Act 2013 (ACT) s 2 Magistrates Court Act 1930 (ACT) s 208 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4F, 19, 32, 33 Road Transport (General) Act1999 (ACT) ss 61A, 64, 65
Cases Cited:	Bullock v Bower (2015) 71 MVR 445 Burow v Hoyer (2015) 292 FLR 325 Newham v Cogle [2012] ACTSC 76 Re Attorney General (NSW) (No 3 of 2002) [2004] 61 NSWLR 305 Tindall v Spalding (2014) 10 ACTLR 198
Parties:	Hans Stoehr (Appellant) Daniel Meyer (Respondent)
Representation:	Counsel Ms S McFarland (Crown) Mr P Edmonds (Offender)
Solicitors ACT Director of Public Prosecutions (Crown Canberra Criminal Lawyers (Offender)
File Numbers:	SCA 95 of 2015
Decision under appeal:	Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 21 January 2016 Case Title: Meyer v Stoehr Court File Number: CC 10385 of 2014

MURRELL CJ:

On 21 January 2015, the Magistrates Court convicted the appellant of two driving offences that occurred on 9 October 2014. For the offence of driving while licence suspended, the Court imposed a fine. For the offence of driving with a prescribed concentration of alcohol in the breath (level 3), the Court sentenced the appellant to 60 hours’ community service, disqualified him from driving for three years and imposed a one-year supervised good behaviour order.

The appellant appealed against the severity of the sentence imposed for the drink‑driving offence.

Facts

The appellant was a repeat offender within the meaning of s 4F of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act). In 1999, he had been convicted in the Australian Capital Territory (ACT) of driving with a prescribed concentration of alcohol in his blood and had received an 18-month good behaviour order together with a restricted licence. In 2001, he had been convicted in New South Wales (NSW) of driving with a high range prescribed concentration of alcohol in his blood and had been fined and disqualified from driving for 12 months. In 2005, he had been found guilty in NSW…

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 Stoehr v Meyer

Details

AGLC: Stoehr v Meyer [2016] ACTSC 144
Case: [2016] ACTSC 144
Decision Date: 2 June 2016

CaseChat Overview and Summary

The appeal in Stoehr v Meyer was brought before the court by the respondent, Meyer, against the decision made by the Magistrates Court. The primary issues at hand were the sentence handed down and the period of licence disqualification imposed on the appellant, Stoehr, for driving with a prescribed concentration of alcohol in his breath. Stoehr, a repeat offender, contested both the severity of the sentence and the length of the licence disqualification.

The court was tasked with determining whether the Magistrates Court erred in law when setting the "default" period for the licence disqualification. The appellant argued that the starting point for the disqualification period was incorrectly calculated, and that the court should have followed the principles set out in Tindall v Spalding and the NSW Guideline Judgment, instead of Burow v Hoyer. Specifically, Stoehr contended that the Magistrates Court failed to adequately consider the principles of parity and proportionality in setting the disqualification period.

Upon reviewing the matter, the court found that the Magistrates Court did indeed err in law when determining the disqualification period. The court held that the starting point for the licence disqualification should have aligned with the guidelines set out in Tindall v Spalding and the NSW Guideline Judgment, rather than the approach taken in Burow v Hoyer. Consequently, the appeal was upheld, and Stoehr was re-sentenced to a disqualification period of two years. This decision highlights the importance of correctly applying legal principles when determining the appropriate penalty for driving under the influence, particularly in cases involving repeat offenders.

Orders

Orders of the court

Appeal upheld. Re-sentenced to a disqualification period of two years.

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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