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Tegan Vavoulas v Adele Eileen Austin

Tegan Vavoulas v Adele Eileen Austin

Case [2014] ACTSC 282 29 July 2014

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Tegan Vavoulas v Adele Eileen Austin
Citation:	[2014] ACTSC 282
Hearing Date(s):	24 July 2014
DecisionDate:	29 July 2014
Before:	Refshauge J
Decision:	1. The appeal be upheld. 2. The finding that the appellant is guilty of the offence under s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) be confirmed. 3. The conviction and sentence entered in the Magistrates Court on 8 April 2014 be set aside. 4. In lieu, Tegan Vavoulas is required 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 from 29 July 2014.
Category:	Principal Judgment
Catchwords:	APPEAL – In General and Right of Appeal – Appeal against sentence – Whether sentence manifestly excessive
Legislation Cited:	Crimes Act 1914 (Cth), s 19B Crimes (Sentencing) Act 2005 (ACT), ss 17, 33(1)(r), Ch 8A Crimes (Sentence Administration) Act 2005 (ACT), s 17 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 Magistrates Court Act 1930 (ACT), Pt 3.10, Div 3.10.2 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 13E, 20, 34
Cases Cited:	Balthazaar v The Queen [2012] ACTCA 26 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Taxation v Baffsky (2001) 182 ALR 92 Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 Goundar v Goddard (2010) 240 FLR 176 Hawkins v Hawkins (2009) 3 ACTLR 210 Higgs v The Queen [1999] FCA 1562 Jones v Morley (1981) 29 SASR 57 Kent v Arley [2007] ACTSC 66 Lukatela v Apostoloff [2010] ACTSC 74 Rosebyv Harman [2014] ACTSC 125 R v Gordon (1994) 71 A Crim R 459 R vHearne (2001) 124 A Crim R 451 R v Ingrassia (1997) 41 NSWLR 447 R v Nguyen [2002] NSWCCA 183 Re Stubbs (1947) 47 SR (NSW) 329 Stark v Plant [2010] WASCA 74 Sutherland v Luchetti [2013] ACTSC 196 The Queen v CV [2013] ACTCA 22 The Queen v Eisenach [2011] ACTCA 2 Thomeloe v Filipowski (2001) 52 NSWLR 60 Wong v The Queen (2001) 207 CLR 584
Texts Cited:	Judicial Commission, “Common Offences in the NSW Local Court: 2010” (2012) 40 Sentencing Trends and Issues
Parties:	Tegan Vavoulas (Appellant) Adele Eileen Austin (Respondent)
Representation:	Counsel Mr M Kukulies-Smith (Appellant) Mr S McLaughlin (Respondent)
Solicitors Kamy Saeedi Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 26 of 2014
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 8 April 2014 Case Title: Adele Eileen Austin v Tegan Vavoulas Court File Number(s): 168078

Refshauge J:

On 21 December 2013, police conducting a mobile patrol in Harrison in the ACT at about 10:53 pm stopped a motor vehicle being driven by Tegan Jacoba Vavoulas, the appellant.

There is no evidence as to why the police stopped the motor vehicle.

Ms Vavoulas was required to undergo an alcohol screening test, the result of which was negative, but also a drug…

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 Tegan Vavoulas v Adele Eileen Austin

Details

AGLC: Tegan Vavoulas v Adele Eileen Austin [2014] ACTSC 282
Case: [2014] ACTSC 282
Decision Date: 29 July 2014

CaseChat Overview and Summary

Tegan Vavoulas appealed against his conviction and sentence for driving with a high level of alcohol in his system, a charge under section 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The appeal was heard by the Supreme Court of the Australian Capital Territory. The conviction was confirmed, but the sentence was deemed manifestly excessive and thus, the appeal was allowed.

The primary legal issue was whether the sentence imposed by the Magistrates Court was manifestly excessive. The appellant argued that the sentence was disproportionate to the offence, while the respondent contended that the sentence was within the Magistrates Court's jurisdiction and discretion. The court had to determine if the sentence was so disproportionate as to shock the conscience of the court, making it manifestly excessive.

The court found that the sentence was indeed manifestly excessive. It considered the nature of the offence, the appellant's previous good character, and the deterrent effect of the sentence. The court held that the sentence was disproportionate and thus, manifestly excessive. The appeal was upheld, and the conviction was confirmed, but the sentence was set aside. Instead, the appellant was required to sign an undertaking to comply with the offender’s good behaviour obligations for a period of twelve months.

The court ordered that the appeal be upheld, the conviction be confirmed, the conviction and sentence entered in the Magistrates Court be set aside, and that Tegan Vavoulas sign an undertaking to comply with the offender’s good behaviour obligations for a period of twelve months from 29 July 2014.

Orders

Orders of the court

1. The appeal be upheld.

2. The finding that the appellant is guilty of the offence under s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) be confirmed.

3. The conviction and sentence entered in the Magistrates Court on 8 April 2014 be set aside.

4. In lieu, Tegan Vavoulas is required 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 from 29 July 2014.

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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Citations

AGLC Citation

Tegan Vavoulas v Adele Eileen Austin [2014] ACTSC 282

Most Recent Citation

Rubio v Ohlmus [2016] ACTSC 84

Cases citing this decision · 1 of 1 shown

Rubio v Ohlmus
[2016] ACTSC 84 Para 1

…One decision was relied upon. That was Vavoulas v Austin [2014] ACTSC 282, where the appellant was charged with the same offence. She was 20 years old, was employed as a learning support assistant at a local school and had no prior offences of which she had been found guilty.…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

R v Gordon
[2022] ACTCA 48 Para 1

…the Sentencing Act , she was still relatively young. This permits appropriate allowance also to be made in sentencing for her level of maturity. See R v Gordon (1994) 71 A Crim R 459 at 469; R v Hearne (2001) 124 A Crim R 451 at 458; [25].…
Nash v Silver City Drilling (NSW) Pty Ltd
[2017] NSWCA 100 Para 1

…The latter reference was to the comment of Gleeson CJ in R v Ingrassia (1997) 41 NSWLR 447 at 449 that…
Roseby v Harman
[2014] ACTSC 125 Para 1

…ntly set out some principles relating to orders under s 17 of the Crimes (Sentencing) Act , namely non-conviction orders, recently in Roseby v Harman [2014] ACTSC 125 at [39]-[49]. I rely on what I there said.…
Sutherland v Luchetti
[2013] ACTSC 196 Para 1

…I note that this approach accords with what Higgins CJ said in Sutherland v Luchetti [2013] ACTSC 196 at [11].…
R v CV
[2013] ACTCA 22 Para 1

…ses they are the unavoidable result of offending. That does not mean that they should not be taken into account. So much is clear from The Queen v CV [2013] ACTCA 22. It is also expressly a matter that s 33(1)(r) of the Sentencing Act requires the court to take into account.…
Balthazaar v The Queen
[2012] ACTCA 26 Para 1

…ty to an offence charged: Higgs v The Queen [1999] FCA 1562 at [3]. See also Lukatela v Apostoloff [2010] ACTSC 74 at [19] and Balthazaar v The Queen [2012] ACTCA 26 at [53].…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles applicable to such appeals. They may be summarised as follows.…
Lukatela v Apostoloff
[2010] ACTSC 74 Para 1

…usual result of a guilty verdict or a plea of guilty to an offence charged: Higgs v The Queen [1999] FCA 1562 at [3]. See also Lukatela v Apostoloff [2010] ACTSC 74 at [19] and Balthazaar v The Queen [2012] ACTCA 26 at [53].…
Goundar v Goddard
[2010] ACTSC 56

…6 Cobiac v Liddy (1969) 119 CLR 257 Commissioner of Taxation v Baffsky (2001) 182 ALR 92 Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 Goundar v Goddard (2010) 240 FLR 176 Hawkins v Hawkins (2009) 3 ACTLR 210 Higgs v The Queen [1999] FCA 1562 Jones v Morley (1981) 29 SASR 57 Kent v Arley [2007] ACTSC 66 Lukatela v Apost…
Stark v Plant
[2010] WASCA 74 Para 1

…e had to be exceptional circumstances before a non-conviction order could be made. He referred to what the Court of Appeal (WA) said in Stark v Plant [2010] WASCA 74 at [18] where McLure P, with whom Owen and Buss JA agreed, said of the non-conviction order permitted under s 19B of the Crimes Act 1914 (Cth)…
Hawkins v Hawkins
[2009] ACTSC 148 Para 1

…Whether a sentence is manifestly excessive is a conclusion that the court draws from all the facts and circumstances. I have set out in Hawkins v Hawkins (2009) 3 ACTLR 210 at 218-21; [39]-[54] the approach to this ground of appeal. I apply it to this case.…
Kent v Arley
[2007] ACTSC 66 Para 1

…This approach has been reflected in this Court’s approach to such orders. Thus, in Kent v Arley [2007] ACTSC 66 at [9], Connolly J said…
R v Nguyen
[2002] NSWCCA 183 Para 1

…I also note that the NSW Court of Criminal Appeal referred in R v Nguyen [2002] NSWCCA 183 at [50], in the context of s 10 of the Crimes (Sentencing Procedure Act, to…
Wong v The Queen
[2001] HCA 64 Para 1

…The instinctive synthesis that is required of a sentencer ( Wong v The Queen (2001) 207 CLR 584 at 611; [25]) renders such an approach to be undertaken cautiously.…
Commissioner of Taxation v Baffsky
[2001] NSWCCA 332 Para 1

…Nevertheless, in Commissioner of Taxation v Baffsky (2001) 182 ALR 92 ( Baffsky ), the NSW Court of Criminal Appeal disagreed with that assessment and said there was no such implication unless expressed in the legislation. Spigelman CJ, with whom, Simpson J and Einfeld AJ agreed, said (at 105; [77])…
Thorneloe v Filipowski
[2001] NSWCCA 213 Para 1

…under s 17(4) of the Sentencing Act . This is reinforced by the comment by the New South Wales Court of Criminal Appeal in Thomeloe v Filipowski (2001) 52 NSWLR 60 when considering the similar provision in that State, namely s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which has, in s 10(3)(d), a simila…
Higgs v The Queen
[1999] FCA 1562 Para 1

…It is true that the recording of a conviction is the usual result of a guilty verdict or a plea of guilty to an offence charged: Higgs v The Queen [1999] FCA 1562 at [3]. See also Lukatela v Apostoloff [2010] ACTSC 74 at [19] and Balthazaar v The Queen [2012] ACTCA 26 at [53].…
Cobiac v Liddy
[1969] HCA 26 Para 1

…Nevertheless, the court is to take into account all the relevant circumstances, and if there is, in the words of Cobiac v Liddy (1969) 119 CLR 257 at 276, a “sufficient reason” for departing from the ordinary consequence of a finding of guilt, then the court is authorised to make an order under s 17 of the Sentencing…

Legislation cited in this decision · 6

Road Transport (Alcohol and Drugs) Act 1977 (ACT)
13E, 20, 34 4 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
17, 33(1)(r) 3 mentions
Crimes (Sentence Administration) Act 2005 (ACT)
17 2 mentions
Crimes (Sentencing Procedure) Act 1999 (NSW)
10 2 mentions (from Para 1)
Crimes Act 1914 (Cth)
19B 2 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
1 mention (from Para 1)