HUMAN RIGHTS ACT
RICHARD JOHN TRAVINI v WOJTEK STARCZEWSKI
[2009] ACTSC 123 (24 September 2009)
CRIMINAL LAW – drink driving – s 19 Road Transport (Alcohol and Drugs) Act 1977 (ACT) – disparity in sentencing – non-conviction orders – s 17 Crimes (Sentencing) Act 2005 (ACT)
PRACTICE AND PROCEDURE – jurisdiction of the Supreme Court to hear an appeal – whether order “imposed” by the Magistrates Court – s 208(1)(d), Magistrates Court Act 1930 (ACT) – meanings of “an order against the defendant” and “an order on the defendant” – ss 208(1)(c), 113, 114 Magistrates Court Act 1930 (ACT) – whether the disqualification of a driver’s licence is such an “order” – s 32 and 33 Road Transport (Alcohol and Drugs) Act 1977 (ACT)
PRACTICE AND PROCEDURE – jurisdiction of the Supreme Court to hear an appeal in against conviction – s 208(b) Magistrates Court Act 1930 (ACT), s 17 Crimes (Sentencing) Act 2005 (ACT) – meaning of “conviction” at common law – reinterpretation of s 208(b) Magistrates Court Act 1930 (ACT) to encompass s 17 Crimes (Sentencing) Act 2005 (ACT) – ss 22(4), 30 of the Human Rights Act 2004 (ACT)
PRACTICE AND PROCEDURE – jurisdiction of the Supreme Court to hear an appeal – whether order “imposes” a penalty – s 208(1)(c) Magistrates Court Act 1930 (ACT) – ss 22(4), 30 of the Human Rights Act 2004 (ACT)
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4C, 19, 32, 33
Crimes (Sentencing) Act 2005 (ACT), ss 10, 14, 17, 29, 30
Magistrates Court Act 1930 (ACT), Pt 3.6, Div 3.10.3, ss 113, 114, 208, 219B, 244
Crimes (Sentence Administration) Act 2005 (ACT), ss 17, 149, 161
Victims of Crime (Financial Assistance) Act 1983 (ACT), s 68
Crimes Act 1900 (ACT), ss 315A, 375
Justices Act 1902 (NSW), s 80
Magistrates Court (Civil Jurisdiction) Act 1982 (ACT)
Human Rights Act 2004 (ACT), ss 22, 30
Court of Petty Sessions Ordinance 1930 (ACT) ss 113, 129
Road Transport (Driver Licensing) Regulation 2000 (ACT) Div 3.7, s 45
Fox R and Freiberg A, Sentencing: State and Federal Law in Victoria (2nd ed, Oxford University Press, 1999)
George v The Queen [1986] Tas R 49
R v Visconti [1982] 2 NSWLR 104
R v Osenkowski (1982) 30 SASR 212
Wong v The Queen (2001) 207 CLR 584
Leeth v Commonwealth of Australia (1992) 174 CLR 455
Lowe v The Queen (1984) 154 CLR 606
Green v Webb [2006] WASC 71
Everett v The Queen (1994) 181 CLR 295
Barac v Thexton [2008] ACTSC 137
Sparham-Souter and Anor v Town and County Developments (Essex) Ltd and Anor [1976] 1 QB 858
Scott v Wynants [2009] ACTSC 62
Forbutt v Blake (1981) 51 FLR 465
R v Forde [1923] 2 KB 400
Pilkington v The Queen [1955] Tas SR 144
Gower v Ross [1959] SASR 278
R v Stewart [1960] VR 106
R v Murphy (1979) 1 A Crim R 398
Cooper v Pryce (1984) 73 FLR 1
Karoly v Brown and Anor
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- AGLC
- Travini v Starczewski [2009] ACTSC 123
- Case
- [2009] ACTSC 123
- Decision Date
CaseChat Overview and Summary
The Supreme Court found that the disqualification of a driver’s licence could be considered an "order against the defendant" under section 208(1)(c) of the Magistrates Court Act 1930 (ACT). Additionally, the court clarified that the term "conviction" under section 208(b) of the same Act should be reinterpreted to encompass sentencing orders under section 17 of the Crimes (Sentencing) Act 2005 (ACT). This reinterpretation was necessary to ensure consistency with the Human Rights Act 2004 (ACT). The Supreme Court also held that the order reducing the period of licence suspension was "imposed" within the meaning of section 208(1)(c) of the Magistrates Court Act 1930 (ACT). Consequently, the court had jurisdiction to hear the appeal.
The Supreme Court upheld the appeal and confirmed the conviction of the appellant. It set aside the fine imposed by the Learned Magistrate and substituted it with a fine of $100. The court also set aside the order reducing the period of licence suspension, reinstating the minimum period of three months. Finally, the court set aside the order for costs made by the Learned Magistrate and made no order for costs of the appeal or the proceedings before the Magistrates Court.
Orders
Orders of the court
1. The appeal be upheld.
2. The conviction of the appellant be confirmed.
3. The fine imposed by the Learned Magistrate be set aside and, in lieu, a fine of $100 be imposed.
4. The order of the Learned Magistrate reducing the period of suspension of the appellant’s licence to drive be set aside and the period of licence suspension be reduced to the minimum period of three months.
5. The order for costs made by the Learned Magistrate be set aside and there be no order for costs of the appeal or of the proceedings before the Magistrates Court .
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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