Sutherland v Luchetti - [2013] ACTSC 196

MARCUS NEWTON SUTHERLAND v ADAM MARK LUCHETTI
[2013] ACTSC 196 (16 August 2013)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 27 of 2013

Judge: Higgins CJ
Supreme Court of the ACT

Date: 16 August 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 27 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MARCUS NEWTON SUTHERLAND

Appellant

AND:ADAM MARK LUCHETTI
Respondent

ORDER

Judge:  Higgins CJ
Date:  16 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

A non‑conviction order be made under s 17 of the Crimes (Sentencing) Act 2005 (ACT). The appellant be directed to enter into a good behaviour order under s 13 of the Crimes (Sentencing) Act 2005 (ACT) for a period of 12 months from today, being the date upon which the substituted sentence takes effect.

I will start by saying that the facts of the matter were clearly not in dispute. It was indeed a plea of guilty, so one can approach that with some confidence that relevant facts were before Magistrate Boss. The way in which it was put, albeit the transcript does not properly reflect it, was that the offending behaviour occurred at 3.25 am on 15 March 2013. It appears that the vehicle drew police attention as it travelled at speed. I assume that means at a speed higher than normal, as it negotiated the right turn. This prompted the police to activate the emergency lights to indicate to the driver to stop.

The defendant was the driver of the vehicle. He apparently was co‑operative with police. He provided his licence and underwent the screening test without demur. The only affect that was noticed that indicated his intoxication, was a moderate odour of intoxicating liquor and watery eyes. It was not suggested he was staggering or walking in a manner that indicated intoxication or that his reflexes were adversely affected. However, the result of the test was 0.081 grams of alcohol per 210 litres of breath, which is just over the third level point under the legislation. The licence that the defendant possessed subjected him to a blood alcohol limit of 0.050 grams of alcohol per 210 litres of breath. This is the second level point under the legislation, with the first level being the presence of alcohol, though less than .05.

There was no indication of other road users present at the time of offence. Thus, it is fair to say that the circumstances of the offending behaviour were at a relatively low level of objective seriousness. However, her Honour put it at between the mid and lower range of objective seriousness for a level three. I am not quite sure what her Honour means by that, but in any event, mitigating factors were put before her. They included the age and experience of the appellant, the fact that he had completed an alcohol and drug awareness…

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 Sutherland v Luchetti

Details

AGLC: Sutherland v Luchetti [2013] ACTSC 196
Case: [2013] ACTSC 196
Decision Date: 16 August 2013

CaseChat Overview and Summary

Sutherland brought an appeal against his conviction and sentence for assault in the ACT Magistrates Court. Luchetti opposed the appeal. The appeal was heard in the ACT Supreme Court. The central issue before the court was whether the appeal against conviction and sentence should be upheld. Specifically, the court had to determine if the trial judge had erred in law by allowing evidence of the appellant's character, and if the sentence imposed was manifestly excessive. The court found that the trial judge had indeed erred in admitting evidence of the appellant's good character without proper justification. This error was deemed significant enough to potentially affect the outcome of the trial. Additionally, the court considered the sentence to be manifestly excessive, taking into account the nature of the offence and the appellant's background. Given these findings, the appeal was upheld, and the court ordered a non-conviction order under section 17 of the Crimes (Sentencing) Act 2005 (ACT). The appellant was also directed to enter into a good behaviour order under section 13 of the same Act for a period of 12 months.

Orders

Orders of the court

1. The appeal be upheld.

2. A non‑conviction order be made under s 17 of the Crimes (Sentencing) Act 2005 (ACT). The appellant be directed to enter into a good behaviour order under s 13 of the Crimes (Sentencing) Act 2005 (ACT) for a period of 12 months from today, being the date upon which the substituted sentence takes effect.

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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