Tindall v Spalding - [2014] ACTSC 253

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Tindall v Spalding
Citation:	[2014] ACTSC 253
Hearing Date(s):	3 April 2014
DecisionDate:	1 October 2014
Before:	Burns J
Decision:	The appeal is dismissed. The orders of the Magistrates Court of 4 September 2013 are confirmed.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Driving Offences – drink-driving offences – repeat offender APPEAL – Appeal from the Magistrates Court – sentence manifestly excessive – appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) s 37 (1) Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 19, 26, 33 Road Transport (General) Act 1999 (ACT) Div 4.2, s 64 (1)
Cases Cited:	Newham v Cogle [2012] ACTSC 76 Re Attorney-General’s Application (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 Scott v Wynants [2009] ACTSC 62
Parties:	Benjamin Tindall (Appellant) Anthony John Spalding (Respondent)
Representation:	Counsel Mr C Lynch (Appellant) Ms A Knibbs (Respondent)
Solicitors Craig Lynch & Associates (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 81 of 2013
Decision under appeal:	Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 4 September 2013 Case Title: Anthony John Spalding v Benjamin Tindall Court File Number: CC13/5207

Burns J:

The appellant was the driver of a motor vehicle travelling on Northbourne Avenue in Braddon at about 2:10 am on Friday 21 June 2013 when he was stopped by police and required to undergo a roadside breath screening test. The result of that test was positive for alcohol, and the appellant was taken into custody for the purposes of undergoing a breath analysis. At 2:41 am that morning the appellant provided a sample of his breath for breath analysis, which returned a reading of 0.082 grams of alcohol per 210 L of breath. This is a level 3 reading for the purposes of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act).

A summons was issued requiring the appellant to appear before the ACT Magistrates Court on 14 August 2013 to be dealt with on a charge contrary to s 19 of the Act alleging that he, as a repeat offender, in the Australian Capital Territory on 21 June 2013, having been the driver of a motor vehicle on the road, did have, within the relevant period, the prescribed concentration of alcohol in his breath being level 3. The appellant was a repeat offender for the purposes of the Act because he had previously been convicted of an offence under s 19 of the Act in 1998. On 14 August 2013 a legal practitioner appeared in the Magistrates Court on behalf of the appellant, and the matter was adjourned to 4 September 2013 for a plea of guilty. It is not clear from the record of the Magistrates Court whether the appellant was also present in person on 14 August 2013, but nothing turns on this fact. On 4 September 2013 the appellant was again represented by a legal practitioner, although I am…

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 Tindall v Spalding

Details

AGLC: Tindall v Spalding [2014] ACTSC 253
Case: [2014] ACTSC 253
Decision Date: 1 October 2014

CaseChat Overview and Summary

The appellant, Tindall, appealed against his conviction and sentence for drink-driving, which was his third such offence. The case was heard in the Magistrates Court, and the appeal was brought before a higher court. The central issue was whether the sentence imposed by the Magistrates Court was manifestly excessive.

The court considered whether the sentence was outside the range of sentences that could be considered appropriate for the offence. It evaluated the nature of the offence, the appellant’s history of similar offences, and the need for deterrence and denunciation. The court found that the sentence was within the range of appropriate penalties for a repeat offender and was not manifestly excessive.

As a result of this determination, the appeal was dismissed, and the original orders of the Magistrates Court were confirmed. This decision underscored the importance of considering the totality of circumstances, including the offender's history, in sentencing for repeat drink-driving offences.

Orders

Orders of the court

The appeal is dismissed.

The orders of the Magistrates Court of 4 September 2013 are confirmed.

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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